Majority
p. 531Catherine McIntyre, App’lt, v. Charles G. Clark, Resp’t. Same v. Same. (Supreme Court, General Term, First Department, Filed January 22, 1887.)
Headnote
Dower—Action for—Code Civ. Pro., § 1613.The sum having been ascertained and fixed by the final judgment, the court has no power to alter such final judgment by providing that a party entitled to dower should receive one-tliird of the net rents which should be actually received from the property and no more.
Appeal from order of the special term modifying decree.
L. L. Kellogg, for app’lt; Hoffman Miller, for resp’t.
Section 1613 of the Code requires that a fixed sum equal to one-third of the rental value of the property, shall be ascertained by the court and specified in the final judgment which sum shall be paid to the plaintiff annually, and that the sum so to be paid was to remain a charge upon the property during the natural life of the party entitled to dower. This sum having been ascertained and fixed by the final judgment the court had no power to alter such final judgment by providing that a party entitled to dower should receive one-third of the net rents which should be actually received from the property and no more.
The order should be reversed, with ten dollars costs and disbursements.