Peart v. Peart — 18 N.Y. St. Rep. 455

Majority

p. 455

Miranda Peart, Resp’t, v. James Peart et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1888.)

Headnote

1. Dower—Action fob admeasurement of—Parties defendant—Code Civ. Pro., §§ 1597, 1599—What constitute separate causes of action. ■

It is provided by Code Civ. Pro., § 1597, that where the property in "which dower is claimed, is actually occupied, the occupant thereof must be made a defendant in the action, and by section 1599 that, in an action to recover dower in a distinct parcel of property, of which the plaintiff’s husband died seized, all the persons in possession of or claiming title to the property, or any part thereof, may be made defendants, although they possess or claim title to different portions thereof in severalty. Held, that where there were two distinct parcels, occupied by different persons, the

p. 456

right of action for dower in each was separate, and that the causes of action should be separately stated and numbered.

2. Same—Complaint—When should be made more definite and CERTAIN.

The first clause of the complaint in an action to recover dower, set forth the provisions of the will of the husband of the plaintifE, in which he purported to devise two parcels of real estate. The fourth clause of the-complaint alleged that on the death of the husband of the plaintiff the several lots of land and premises descended to the heirs-at-law of the deceased. Held, that if the real estate devised by the will were the same as that of which the complaint alleged the husband of the plaintiff- died seized, there were conflicting allegations which should be explained and made more definite and certain by amendment.

3. Same—Complaint—Description of premises involved must conform; TO REQUIREMENTS OF CODE ClV. PRO., §§ 1606, 1511.

Held, that where, in the complaint in action to recover dower, the description of the premises did not conform to the requirements of CodeCiv, Pro., §§ 1606, 1511, it should be amended.

Appeal from an order of the Monroe special term denying motion to compel the plaintiff to make her complaint more definite and certain.

Waldo G. Morse, for app’lts; Charles Chamberlain, Jr. for resp’t.

The action is for dower. The complaint contains but one count, and alleges that the plaintiff is the widow of Richard Peart, deceased, and that he died seized of two distinct parcels of real estate, situate in the city of Rochester, describing it; that she is entitled to dower in such premises, and that the parcel first described is actually occupied by the defendants, John H. Foley and George W. Duncan, and that the premises secondly described is actually occupied by the defendant, Joseph B. Peart, together with his wife, the defendant Mary Peart and her children, the infant defendants, Richard Peart, James Peart, Minnie Peart, Elizabeth Peart and Anna. Peart.

Section 1597 of the Code of Civil Procedure provides, that “where the property in which dower is claimed is actually occupied, the occupant thereof must be made defendant in the action.’.’ Section 1599 provides that “in an action to recover dower in a distinct parcel of real property of which the plaintiff’s husband died seized * * * all the persons in possession of or claiming title to the property or any part thereof may be made defendants, although they possess or claim title to different portions thereof in severalty. ” It will be observed that the parcels of real estate described are occupied by different persons, and under the former section of the Code quoted they must be made defendants, and that under the last section quoted, where the action is to recover dower in a distinct parcel all per

p. 457

sons in possession, etc., may be made defendants, although they possess portions in severalty. In this case, however, there are two distinct parcels described occupied by different persons, and we consequently conclude that the right of action for dower in each is separate, and that the causes of action should be separately stated and numbered.

The complaint in its first clause sets forth the provisions of the w;ill of Richard Peart, in which he purports to devise two parcels of real estate. In the fourth clause of the •complaint it is alleged that upon the death of Richard Peart the several lots of land and premises descended to the heirs-at-law of the deceased. If the real estate devised by the will is the same as that which the complaint alleges he died seized, there are conflicting allegations which should be explained and made more definite and certain by amendment.

Again, the description of the premises contained in the third clause of the complaint, especiaEy the second parcel, does not conform to the requirements of sections 1606 and 1511 of the Code, and should be amended.

The order appealed from should be reversed, and motion granted as to the matter herein designated, with ten dollars costs and disbursements.

Barker, P. J., Bradley and Dwight, JJ., concur.