Youngs v. Goodman

Headnote

Partition — dower — gross sum deposited with chamberlain of city of New York in lieu of dower — amount properly paid to husband upon death of wife without making claim thereto.

Youngs v. Goodman, 214 App. Div. 497 , affirmed.

Appeal, by permission, from two orders of the Appellate Division of the Supreme Court in the first judicial department, entered November 27, 1925, which affirmed two orders of Special Term, the first of which denied a motion to vacate an ex parte order directing payment of certain moneys on deposit with the chamberlain of the city of New York in a partition action, and the second of which denied a motion for payment of said moneys to the appellant herein.

The following questions were certified: “1. Did the Supreme Court at Special Term, subsequent to the final judgment in partition, herein, dated May 13, 1912, and subsequent to the order of the Supreme Court, dated July 22, 1912, entered upon the application of the defendant, Harry E. Montes, which order directed that the sum of One thousand six hundred • thirty-three and 81 /100 ($1,633.81) Dollars be deposited with the Chamberlain of the City of New York as and for a gross sum to which Louise Montes, a defendant, wife of Harry E. Montes, Was entitled in lieu of her dower interest in the proceeds of sale in such partition, have the power, right and authority, ex parte and without notice, to direct the payment of the said sum so deposited, to Harry E. Montes, instead of Louise Montes, by reason of the death of the said Louise Montes, without her, during her lifetime, having asserted her right thereto?

“2. Was the order made by Mr. Justice Finch on January 29, 1921, sufficient authority to justify payment

by the Chamberlain of the City of New York of the funds therein mentioned to Harry E. Montes?

“ 3. Did the order of January 29, 1921, show, on its face that the Court was without jurisdiction to make it?

“ 4. Was any duty imposed upon the Chamberlain of the City of New York to verify the recital in the order of January 29, 1921, ‘ that no other party to this action, or other person has any share or interest in the sum of money still remaining on deposit with the Chamberlain of ■ the City of New York to the credit of this action, and adjudged and directed to be paid to the said Louise Montes, now deceased, save and except the petitioner, Harry E. Montes, her surviving husband? ’ ”