Everson v. McMullen — 10 N.Y. St. Rep. 627

Majority

p. 627

Hannah Everson, Resp’t, v. Andrew McMullen, App’lt.

(Supreme Court, General Tenn, Third Department,

Filed September, 1887.)

Headnote

Costs—Code Civil Procedure, § 3228, sued. 1—Action for dower.

The action for dower, which is now regulated hy our Code of Civil Procedure, is an action to recover the interest in real estate, whether the interest he admeasured upon the land itself or its equivalent recovered in money, and the plaintiff in such action is entitled to costs, “of course.” Distinguishing, Aikman v. Ha/rsell ( 31 Hun, 685 ).

G. D. B. Hasbrouck, for resp’t; Preston & Chipp, for app’lt.

Costs were properly awarded the plaintiff. Dower is “an interest in real estate” whereof the widow is endowed, and, although technically, the interest is a chose in action, or mere claim, and not an estate until ad-measured, still the “action for dower,” which is now regulated by our Code of Civil Procedure, is an action to recover the interest in real estate, whether that interest be

p. 628

admeasured upon the land itself or its equivalent recovered in money. 4 Kent Com. 35; Payne v. Becker, 87 N. Y., 153 ; Code Civ. Pro., §§ 1607-13-17-18. The action for dower is triable by jury. Id., § 968, Hence plaintiff is entitled to costs, “of course.” Section 3228, subd. 1.

Our attention is called to Aikman v. Harsell ( 31 Hun, 635 ). That action was tried before the last nine chapters of the Code of Civil Procedure took effect. It was there held that the costs were in the discretion of the court, the court holding that there were no statutory provisions in reference to the costs of the action.

Without questioning the propriety of the ruling in that case, we think the Code now gives the plaintiff costs.

Order affirmed with ten dollars costs and printing disbursements. *

Learned, P. J., and Williams, J., concur.