Spliess v. Meyer — 36 N.Y. St. Rep. 227

Majority

p. 227

Lisette Spliess, Resp’t, v. Bertha Meyer, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed January 13, 1891.)

Headnote

Partition—Parties.

In an action for partition of the real estate of U., where plaintiff, an heir at law, was a tenant in common with some of the defendants, the defendant M. was made a party ; and the complaint alleged that she claimed to be the widow of U., and as administratrix had collected rents of this real estate; that she claimed dower ; that she was not U.’s widow and was never legally married to him. Held, that the defendant M. was a proper and necessary party defendant.

Appeal from an interlocutory judgment overruling a demurrer to the complaint.

Antonio Knauth, for app’lt; J. G. Julius Langbein, for resp’t.

The action is brought by the plaintiff as one of the heirs at law of Greorge TJehlinger, deceased, for the partition of his real estate. The complaint alleges that the defendant Bertha Meyer, calling herself Bertha TJehlinger, claims to be the widow of the deceased owner of the property, and entitled to dower therein. It is further averred that she is not the lawful widow of TJehlinger, and was never legally married to him, but as administratrix has collected and received the rents of his real estate. This defendant demurred to the complaint on the ground that it failed to state facts constituting a cause of action against her.

But it does appear from it that the plaintiff and two of the defendants-were tenants in common of the real estate described in the complaint, and that this defendant claims to be entitled to an estate in dower therein, which is* sufficient reason for making her a defendant. Code Civil Procedure, §§ 1538, 1539.'

The fact that her right to dower in the premises may be controverted and thereby result in an issue for its trial, would not justify her omission as a party. For the practice in actions of partition has been so far changed as to provide for the trial and determination of this as well as other classes of disputes concerning the title to the estate to be partitioned. Claims arising out of transactions connected with the same subject of action may now be united in the same action, whether they be legal or equitable or both. Id., § 484, subd. 9. The object is to provide for a complete determination of the controversy, and to clear it up entirely, so far as it is connected with the same subject. And that is the nature of the claim made for dower in this property by this defendant. It has also been particularly and further provided that adverse claims of title or interest in the property may-, be tried in the action of partition. Id., § 1543. And for that'

p. 228

object a trial by jury has been provided. Id., § 1544. And the interlocutory judgment is required to declare the right, share or interest of each party in the property, so far as the same shall be ascertained, and it must determine the rights of the parties therein. Id., § 1546. And for that determination this defendant is a necessary party. It could not be made without affording her an opportunity to be heard.

These further and special provisions are consistent with no other conclusion than that the rights and interests of the different parties in the property were intended to be tried and defined in the action. For all the necessary modes of proceedings have been carefully supplied and directed to be followed for the attainment of that end. And so they have been regarded by the courts. Hulse v. Hulse, 23 N. Y. State Rep., 123; Brown v. Brown, Id., 768; Shannon v. Pickell, 2 id., 160. These changes, as they are now contained in the Code of Civil Procedure, and so far as they had previously been made by 3 R. S., 6th ed., 586, §§ 20-27, do not appear to have been brought to the notice of the court in the case of Van Schuyver v. Mulford, 59 N. Y., 426 . And that authority cannot, therefore, be followed as controlling. But as the provisions of the statute have been made applicable, fully authorizing and requiring the settlement by trial of contested claims, they are imperative and must be followed. This case is clearly within these changes in the law. And the judgment should be affirmed, with costs, but with liberty to the defendant to withdraw her demurrer and answer within twenty days upon payment of the costs of the demurrer and of the appeal.

Van Brunt, P. J., and Brady, J., concur.