6 Lans. 313 | N.Y. Sup. Ct. | 1872
This is an appeal from an order made at Special Term, confirming the report of commissioners appointed to admeasure the dower of the respondent in certain lands described in her petition, of which her husband died seized, or was seized during her coverture. The proceeding for the admeasurement of dower was by petition to this court, under the provisions of the Revised Statutes. (2 R. S., 488.) From the petition and the other papers before ns, it appears that the lands in which the respondent sought to have her dower admeasured consisted of three several parcels. First. A parcel of about eighty-four acres, of which the respondent’s husband was, during coverture, seized in fee in
No complaint is made that the admeasurement is in any respect unfair or unjust as respects measure or quantity. The complaint in regard to the merits is that the respondent was not entitled to have her dower admeasured and assigned in either parcel by metes and bounds, inasmuch as the appellant and the husband, at the time of the death of the latter, held each and all of said parcels as tenants in common. Whatever force there may be in this objection in other respects, it clearly does not apply to the first parcel of land. The appellant took a common interest and title in that parcel by conveyance from the respondent’s husband during her coverture, and subject to her right of dower therein. She had, therefore, a clear right to have her dower admeasured and assigned in that parcel by metes and bounds in severalty. Without going further, our statute (1 R. S., 742, § 16) provides that no “ act, deed or conveyance executed or performed by the husband without the consent of the wife, evidenced by her acknowledgment thereof, in the manner required by law to pass the estate of married women,” shall prejudice the right of the wife to her dower, or preclude her from the recovery thereof, if otherwise entitled thereto. But in the
The statute has been fully complied with in this respect in this case, in making the admeasurement, and we entertain no doubt that it has been properly made as respects the rights of the appellant.
In any view, as his rights have been in no respect invaded or affected by the admeasurement, he ought not to be allowed to prosecute the appeal.
On the question of notice to the appellant of the meeting of the commissioners to decide upon the admeasurement, the statute does not "in terms provide for any notice, but the prac
It also appears that the action of the commissioners was postponed and delayed, from time to time, by verbal stipulation between the attorneys of the respondent and the appellant respectively. In short, there is no doubt, from the papers before us, that the appellant and his attorney knew of the proceedings of the commissioners as they progressed, and might have appeared before them and been heard, had they desired to appear. As no complaint is made of any unfairness or injustice done by the commissioners in making the admeasurement, the mere technical omission to give notice afforded no ground for refusing to confirm the report
The Revised Statutes, under which the proceedings for admeasurement were had, do not give an appeal from the order of confirmation, except in cases where the commissioners have been appointed by the County. Court or by a surrogate. The appeal from the order here, if it can be upheld, must have been taken under chapter 270 of the Laws of 1854, which allows appeals to be taken in any special proceeding from any judgment, order or final determination, made at Special Term, to the General Term. The order confirming the report of the commissioners in a proceeding of this kind is in the nature of a final order or determination, and is, therefore, appealable under that statute. Such an appeal, however, does not stay the proceedings without the order of the court or a judge thereof, which does not appear to have been given in this case.
As this proceeding is not an action, there can be no doubt
Judgment affirmed.'