134 N.E. 822 | NY | 1922
The case is here on a demurrer to the complaint.
In December, 1913, Reuben Melenky conveyed land in the city of Rochester to his son Asher P. Melenky, now Asher P. Melen. The deed was made that the son might manage the property in the absence of the father, and was coupled with an oral promise to reconvey upon demand. In August, 1914, the father married again; and the plaintiff is his wife. Before the marriage, he told her that he was the owner of valuable real estate in Rochester. She relied upon his statement in consenting *22 to the marriage. Four years later, the son, when asked to reconvey, made a deed of an estate for life, but refused to reconvey the fee. The father, under pressure of age, infirmity and want, accepted the deed as tendered. The purpose of the son in retaining the fee was to deprive the plaintiff of her dower. She prays that an inchoate right of dower be established and a reconveyance adjudged. Father and son are joined as defendants. The demurrer is by the son.
"A widow shall be endowed with a third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage" (Real Property Law, section
This grantor has not attempted to enforce his chose in action. He has not asked a court of equity to undo the conveyance and re-establish the divested title. He is willing to let the transaction stand, or unwilling, at all events, to take active measures to annul it. We are now asked to say that the wife may reclaim what the husband would abandon. This means, of course, that the chose in action is not solely his, but is hers also, to the extent of the benefit that would come to her if he had chosen to enforce it. We find no adequate basis for such a conclusion either in principle or in precedent. Decisions, hardly to be distinguished, announce a different ruling (Phelps v. Phelps,
The order of the Appellate Division should be reversed, and the interlocutory judgment of the Special Term affirmed, with costs in the Appellate Division and in this court, and the question certified answered in the negative.
HISCOCK, Ch. J., HOGAN, POUND, MCLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Order reversed, etc.