4 Cow. 396 | N.Y. Sup. Ct. | 1825
Curia, per
It was decided in Ostrander v. Kneeland, (20 John. Rep. 276,) that, in dower unde nihil habet, view cannot be demanded of course; and it has been doubted whether it lies at all; (Booth on R. A. 38, and note, Anthon’s ed. Park on Dower, 286;) though the better opinion seems to be that it does. (Park on Dower, 286, and the authorities there cited in note.) And this is plainly implied by the statute, (1 R. L. 86, 7, s. 21,) which denies it “ when the dower in demand is of land that the husband aliened to the tenant, or his or her ancestors,, where the tenant ought not to be ignorant, what land the husband did alien to him or her.” In this case, the tenant denies that, to his knowledge or belief, the dowe/ demanded is of lands claimed by him, directly or indirectly, under the husband; and it is, thus far, we think, a case proper for a view. But is a view necessary 1 In such case .only is it to be granted. (1 R. L. 86.) And upon this question we must be governed by the circumstances of the case. This is the course in ejectment, where the form of the declaration is equally general as in this action
Hopkins said, as he did not wish the» specification with the view to a plea, but merely to the trial, he would plead the present- term, and take the course mentioned by the Court to obtain a bill of particulars to inform the defendant as to the trial.
Motion denied:
There have been three decisions, previous to the one in,the-principal caso, npon the question when- a vie-w shall be. granted in real actions, .viz, The Freeholders and Inh. of Gravesend v. Voorhis, (1 John. Cas. 237;) Haynes v, Budd, (id. 335 i) and Ostrander v. Kneeland, (20 John. 276.) In the first, the kind of action does not appear; and the court lay down the general rule, which seems to be the w