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Gucker v. Kopp

152 N.Y.S. 370 Court N.Y. App. Div. Decision date 1915-06-04 Docket No. 7418 English

Delivered by SCOTT, J.

Contents

Majority

p. 370
GUCKER v. KOPP et al.
(No. 7418.)
(Supreme Court, Appellate Division, First Department.
June 4, 1915.)

Headnote

Dower <S=95—Inchoate Interest—Judgment in Partition Suit.
Where judgment for plaintiff was entered in partition, in which a wife of a party declined to accept a gross sum in lieu of her inchoate right of dower, and an amount was deposited in court to protect such right, and on her husband’s death the wife applied for an award of a gross sum, the motion should have been granted; her right to a gross sum by way of admeasurement having become absolute, standing unaffected by her former refusal.
[Ed. Note.—For other cases, see Dower, Cent Dig. § 340; Dec. Dig. <S=>95.]
p. 371
Appeal from Special Term, New York County.
Action for partition by Louise Gucker against Anna Kopp, impleaded with others. From an order denying Anna.Kopp’s application to have a gross sum assigned to her for dower, she appeals. Order reversed, and motion granted.
Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.
Henry M. Flateau, of New York City, for appellant.
John J. Curtin, of New York City, for respondents.

On February 5, 1906, a judgment was entered in a partition action in which the appellant, Anna Kopp, and her husband, were parties; the latter being seised of an undivided interest in the real property partitioned. At that time appellant declined to accept a gross sum in lieu of her-then inchoate right of dower, and the sum of $24,371.94 was deposited in court to protect said inchoate right. The judgment contained the customary provision that any party to the action might at any time thereafter “apply to the court for further direction, judgment, or order in the premises.” The husband is now dead, and appellant’s right to dower has become consummate. She now applies for an order that a gross sum be awarded to her in lieu of her dower right.

We think that the motion should have been granted. The fact that she declined a gross sum in lieu of her inchoate right is no reason why her present application should be denied. The fund stands in the place of the land, and her right to a gross sum by way of admeasurement has become absolute.

Order appealed from reversed, with $10 costs and disbursements, and motion granted. Order filed. All concur.