Connolly v. Newton — 33 N.Y.S. 102

Majority

p. 102

(85 Hun, 552.)

CONNOLLY v. NEWTON.

(Supreme Court, General Term, Fifth Department.

April 12, 1895.)

Headnote

Dower—Action for—Pleading.

Code Civ. Proc. § 1597, provides that when, in an action for dower, the property in which dower is claimed is actually occupied, the occupant thereof must be made defendant, and that when it is not so occupied the action must be brought against some person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, at the time of the commencement of the action. Held, that the complaint must allege that defendant is such occupant or claimant, and an allegation that plaintiff's husband executed a deed of the premises to defendant, in which plaintiff did not join, is not sufficient.

Appeal from special term, Allegany county.

Action by Éssa Connolly against Fred L. Newton. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.

Reversed.

Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.

J. R. Jewell, for appellant.

W. H. Nourse, for respondent.

The action was ejectment for dower in lands of which the plaintiff’s husband died seised. The demurrer was for want of facts in the complaint sufficient to constitute a cause of action. The facts stated were coverture, seisin of the husband during coverture, and death of the husband; also that in his lifetime the husband “executed a deed of the above-described premises to the defendant, Fred L. Newton, the plaintiff, his wife, not joining in such conveyance,” and that she “had in no way confirmed said conveyance, or released her dower in said premises.” The existing statute which gives and regulates the action for dower (Code Civ. Proc. § 1597) provides that:

' “When, the property, in which dower is claimed, is actually occupied the occupant thereof must be made defendant in the action. When it is not so

p. 103

occupied the action must be brought against some person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, at the time of the commencement of the action.”

This, we take it, is equivalent to saying that the defendant in such an action must he shown to be within one of the categories described,—i. e. that he is either an occupant of the premises, or, if the premises were not occupied, then a person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, when the action was commenced; and, if such fact must be shown, it must be alleged. It is equivalent, we suppose, to saying that the action can be maintained only against a person or persons who are within the description of the statute; and, if such is the case, then the complaint must allege the facts accordingly. In this case the complaint does not state whether the property is actually occupied or not, nor that the defendant is an occupant thereof, or is a person exercising acts of ownership thereupon, or that he claims title thereto, or an interest therein. The only allegation in respect to the defendant is that the plaintiff’s husband, in his lifetime, executed a deed of the premises to him. It is not even alleged that the deed was ever delivered to him, nor that he took possession of the premises, or ever claimed title thereto, or an interest therein. So far as appears by the complaint, the defendant may have been, not merely at the time of the commencement of the action, but at all times, a total stranger to the title and to the premises. We think the demurrer was well taken, and should have been allowed. All concur.

Interlocutory judgment appealed from reversed, and demurrer allowed, and final judgment ordered for the defendant thereon, unless the plaintiff, in 20 days, serve an amended complaint, and pay the costs of the demurrer.