Vadney v. Thompson — 6 N.Y. St. Rep. 395

Majority

p. 395

Mary R. Vadney, App’lt, v. David A. Thompson et al., as Ex’rs, Resp’ts.

(Supreme Court, General Term, Third Department,

Filed February, 1887.)

Headnote

1. Dower—Action eor triable by jury—Code Civ. Pro., § 968.

An action for dower is triable by jury, unless such manner of trial be waived.

3. Same—Verdict—What is neither general nor special—Code Civ. Pro., § 1186.

In an action for dower, the only question submitted to the jury was whether certain deeds in which the testator was grantee were delivered to him unconditionally. Held, that a finding of the jury upon this question was neither a general or special verdict.

3. Same—Verdict—Should include what.

Held, that there should have been a general verdict for or against the

p. 396

plaintiff, or that, if the testator’s ownership were the only issue, then there might have heen a finding that the testator was or was net seized of an estate of inheritance during the marriage.

Alden Chester, for app’lt; Thompson & Andrews, for resp’ts; Eugene Burlingame, of counsel.

This is an appeal from an order setting aside a verdict as against the evidence.

Whatever the merits of the case, we do not think this verdict can stand. This is an action for dower ; therefore, triable by a jury unless a jury trial be waived. Code, § 968. Such trial was not waived, and the case was tried before a jury.

The answer of some defendants admits the marriage and the death of the testator and denies all other allegations. That of other defendants, in addition, avers ownership in themselves severally of the premises in which dower is claimed. Thus the principal dispute was as to the ownership by the testator of the premises during the marriage.

The only question submitted to the jury was whether certain deeds, in which the testator was grantee, were delivered to him unconditionally. To this they answered, “ Yes.” This was neither a general nor a special verdict. Code 1186. They did not find that the plaintiff was entitled to dower. Nor did they find that the testator was seized of an estate of inheritance in the premises during the marriage.

They passed only upon one fact which bore upon the issue; and which probably was controlling. But if we take tlie facts admitted in the pleadings, and add to those facts the fact found by the jury, we cannot from these alone decide whether plaintiff is entitled to dower or not. Nothing is said in the pleadings about these deeds.

There should have been a general verdict for or against the plaintiff. Or if, as it would seem, no fact but the testators ownership was the only issue, then perhaps there might have been a finding that the testator was, or was not, seized of an estate of inheritance in the premises during the marriage.

• The case seems to have been submitted to the jury as if the case were triable by the court, and the court were afterwards to make such other findings as might be necessary. Code, § 971. But on that verdict it would not appear that the plaintiff was entitled to dower. Code, § 1607.

Neither party seems to have objected to the course which was taken. We think' it best, therefore, simply to affirm the order without costs to either party on the appeal.

Mayham and Landon, JJ., concur.