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Brown v. Brown

27 N.Y. Super. Ct. 688 4 Rob. 688 Court N.Y. Super. Ct. Decision date 1866-06-30 English

Delivered by Robertson, Ch. J.

Contents

Majority

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Eliza J. Brown, plaintiff and respondent, vs. Ebenezer H. Brown, defendant and appellant.

Headnote

1. An equitable action for the admeasurement of dower is sustainable, under the Code of Procedure, Courts of equity have always had jurisdiction, concurrently with courts of law, in such actions.
2. If it be also an action of ejectment for the recovery of dower, there is no difficulty in the junction of the two. Courts of equity have always administered other equities in conjunction with such admeasurement.
S. Where the court, in an action to recover dower, adjudges that the plaintiff is entitled to dower, it may appoint a referee, to admeasure the plaintiff’s dower, and assess her damages by loss of rents and profits, instead of the three freeholders formerly required in an action at law for dower.
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4. Where a referee is appointed for the purpose of admeasuring and assigning dower, &c. and the defendant appears and litigates before the referee the matters referred, without appealing from the order of reference, or filing exceptions to the report, he thereby waives the right of appeal from such order of reference, and every objection except a want of jurisdiction.
6.. On appeal, also, such an error in the proceedings as admeasuring dower by one person, instead of three, (required to be) freeholders, should be disregarded, as not affecting the substantial rights of the defendant.
6. A widow is entitled, as dower, to one third, of the land according to its value at the time of its alienation by the husband; and is not to be allowed for any increase in value since, or any improvements. But the improvements may be assigned as a part of the dower, provided they are not taken into account in admeasuring the dower; although, if an assignment be otherwise practicable, they should not be included in it.
7. Where a referee has exercised his discretion in assigning improvements as a part of the plaintiff’s dower, which decision has been passed upon by a judge at special term, such decision should not be disturbed, on appeal.
8. In this case it was held that the taxes before the six years to which the inquiry of valuation of the premises, &c. was limited, were properly excluded by the referee, as was also the rate paid for the use of the Croton water by the defendant. Also any amount paid for ornamental work, or repairs to the additions or improvements.
(Before Robertson, Oh. J., and Barboüb and Garvin, JJ.)
Heard April 9, 1866;
decided June 30, 1866.
This was an action under the Code, (in the nature of a suit in equity,) to recover the plaintiff’s dower in twelve lots of' land and a dwelling house at Harlem, conveyed by her husband in his life time to the defendant, and occupied by the alienee at all times thereafter.
The complaint alleged these facts, and that the plaintiff had demanded her dower, and the défendant refused to assign it to her. The prayer of the complaint was that the plaintiff’s dower might be assigned and admeasured to her, and that she might be put in possession, and that she might be paid one third the rents of the premises, and that she might have such other relief as was proper.
The answer admitted the conveyance to the defendant by the plaintiff’s husband, and the defendant’s occupation of the premises, but averred a release of dower.
The trial took place at special term without a jury, before Hon. John M. Barbour, justice. The plaintiff proved the
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allegations in her complaint. The defendant offered no defense. The plaintiff claimed that the following were the facts in. the case:
. On the 20th day of December, 1854, William H. Brown, the husband of the plaintiff, conveyed to the defendant certain lots of land lying between 125th and 126th streets and the 7th and 8th avenues, and a dwelling house thereon. On the 27th of October, 1855, William H. Brown died. The plaintiff never released her dovrer in the premises. Shortly after her husband’s death, she demanded of the defendant that her dower be assigned to her, &c. The defendant refused. The premises in question consisted of twelve lots, six fronting on 125th street, worth $1900 each, together $11,400, and six fronting on 126th street, worth $800 each, together $4800. The dwelling house, exclusive of improvements put upon it by the defendant, was worth $3500, and the other buildings, &c. were worth $400, making together $20,100, of which the widow’s one third was $6700. The improvements added to the dwelling house were worth, at the time of the hearing, $800, making it worth, in its improved state, $4300. The referee assigned this house to the widow, together with three of the inferior lots worth $2400, making the whole amount of the value of the property awarded her equal to $6700, to be held by her during life. The rents for the period inquired of, amounted to $3900, which were reduced by repairs and taxes, &c. to $2037.56, of which the plaintiff was entitled to one third, or $679.15.
The plaintiff offered evidence of. the value of the premises and of the rents, with a view to having the plaintiff’s dower assigned and mesne profits awarded by the court. The court, however, (although admitting the evidence) declined to adjudicate upon these matters, further than to decide that the plaintiff was entitled to dower and a portion of the rents, and to direct a reference to ascertain them.
The judgment directed a reference to Daniel P. Ingraham, Jr. to ascertain and report to the court what was proper dower for the plaintiff, &c. and to take and report to the court an
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account of the rents and profits for six years, prior to the entry of the judgment, exclusive of the profits arising from improvements, and deducting taxes and necessary repairs. The reference being had, the referee made his report, assigning three lots of land and the dwelling house in question, to the plaintiff as her dower, and reporting a small amount, $679.15, due her for her share of the rents of the property during the period in question. The defendant excepted to this report. The exceptions were argued at special term, and the report remitted to the referee for specific findings upon some minor matters. An additional report was made by the referee, and after further argument, the report was in all things affirmed, and final judgment entered accordingly.
Appeal was taken from the judgment, by the defendant. The exceptions which were taken by him on the trial before the court, and on the hearing before the referee, together with the exceptions filed on the conclusions of law and fact of the court, and the reports of the referee, were the subject of review on this appeal.
R. W. Andrews, for the appellant, defendant.
I. The widow is only entitled to damages, or rents as damages, from the time of demand of dower. Such damages are not to be estimated on any improvements made after death of the husband. (3 R. S. 5th ed. 33, §§ 20, 21.) The justice, therefore, erred in finding that the plaintiff was entitled to one third of the rents from October 27, 1855.
II. The justice erred in sending the proceedings to a referee to assign dower. There are two methods prescribed by statute to recover dower : Ejectment, (3 R. S. (5th ed.) 592;) or proceedings by petition to the Supreme Court, county court, or surrogate, for admeasurement of dower, (3 R. S. 5th ed. 791;) In both cases the statute expressly provides that • “ three reputable and disinterested freeholders ” shall be appointed commissioners to admeasure dower. (3 R. S. 5th ed. p. 598, § 48, dec.; p. 792, § 13.) Neither of these provisions is inconsistent with the Code of Procedure, and both still
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exist. There can be no question as to the continuance of the action of ejectment. The other proceeding by petition is a “ special statutory remedy, not heretofore obtained by action,” and saved by section 471 of the Code. The referee has attempted to get round these provisions of the statutes by taking “ the deposition of three disinterested freeholders,” as he reports.
III. The referee erred in setting aside for the widow the dwelling House. All the improvements made by the defendant were upon the house. By giving the house to the plaintiff she gets all these improvements, and the defendant gets only vacant lots, without any allowance to him for the improvements.
IV. The referee erred in finding that the only amount paid for taxes by the defendant was $52.94. The evidence shows that the -defendant paid the taxes of 1857 and 1859, and the Croton water taxes of 1857, 1858, 1859, 1860, 1861, 1862 and 1863. The referee also erred in striking out the evidence of payment of Croton tax. This tax was a lien on the property for the non-payment of which the property might have been sold.
V. The referee should have allowed payments for insurance. -Insurance was necessary for the preservation of the property, and as much for the benefit of the plaintiff as of the defendant.
A. Mathews, for the plaintiff, respondent.
I. This is an equitable action to have dower assigned to the plaintiff. The complaint, and its prayer, is framed in the manner of a bill in equity, and is a proper mode of proceeding. (1 Story’s Eq. Juris. §§ 624 to 632. Swaine v. Perine, 5 John. Ch. 482. Badgley v. Bruce, 4 Paige, 98. Townsend v. Townsend, 2 Sandf. 711 . Code of Procedure, § 468.)
1. The Eevised Statutes have not affected the equitable remedy for dower. They abolished only the legal writ of dower, and substituted therefor the legal action of ejectment. (2 R. S. p. 343, § 34, and p. 303, § 2, subd. 2.)
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2. The plaintiff properly recovered rents and profits, as well as assignment of her dower in the same action. (1 R. L. p. 57, §2 0 p. 60, § 1. 1 R. S. p. 742, §§ 19, 20, 21. Code of Procedure, § 167, subd. 5.)
3. If there be any technical error, the court should disregard it. (Code of Procedure, § 176.)
II. The judgment was proper in form, and the exceptions thereto immaterial. (Hughes’ Equity Draughtsman, 827. Swaine v. Perine, 5 John. Ch. 482. Williams v. Cox, 2 Edw. 178 . Stilwell v. Doughty, 2 Brad. Surr. 311.)
III. This being an Equity case, the exceptions taken upon the hearing before the referee after judgment, are not to be considered with the same strictness as in a bill of exceptions in an action at law. The judgment will not be reversed for technical error. It is enough if it is substantially right. (Forrest v. Forrest, 25 N. Y. Rep. 511 .)
IY. The report of the referee was in all respects just, and warranted by the facts proved before him. So far as there was any conflict of evidence, his findings, and those of the court at special term, upon matters of fact, are conclusive. (Cohen v. Dupont, 1 Sandf. 262 . Mazetti v. New York and Harlem R. R. Co., 3 E. D. Smith, 98. Pearson v. Fiske, 2 Hilton, 146. Skinner v. Oettinger, 14 Abb. 109 . Brooks v. Christopher, 5 Duer, 216 .)
1. The referee was bound to estimate the value of the property at $20,000 to wit: Six lots on 125th street, (No. 437 to 442,) . . . $11,400 Six lots on 126th street, (No. 399 to 404,) . . . 4,800 Dwelling house, (exclusive of “improvements,”) . . 3,500 Other buildings &c., (exclusive of such improvements,) .............. 400
Of which the widow's share was one third, ($6,700.) The testimony of the plaintiff’s three witnesses furnished the only reliable criterion for determining their value, which was opposed only by that of the defendant in person, whose opinion is unreliable; he valued only the house and buildings, and did not controvert the valuation of the lots.
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2. In setting apart a portion of the property, worth $.6,700, to the widow, the referee had a right to divide as he thought proper, and gave her a life estate in that which will be available to her. The vacant lots would he useless to a life tenant. The defendant can easily keep his property by paying the widow a fair equivalent. (2 R. S. 490, § 13. White v. Story, 3 Hill, 543 .)
Adopting the estimates of the three disinterested witnesses, the widow was entitled to have set apart to her the Dwelling house valued at.........$3,500 Improvements at............ 8Ó0 And three lots on 126th st., valued at..... 2,400 Making in all,....... $6,700
Even upon the estimates of the defendant himself) the widow would have, at least, Jhe house, the two lots upon which it stands, and one of the adjoining lots.'
3. The referee, for the like reasons, was hound to adopt the testimony of the three disinterested freeholders, as to the value of the rents, during the period required by the order of reference, (from October 28, 1857, to October 28, 1863,) as follows : Rent of dwelling for six years, exclusive of the increased rent by reason of improvements, ($700 per year; equal to) $4200.
4. Erom this amount, the referee deducted all the “taxes,” imposed on the premises (for the- six years) between October 28, 1863, which had been paid by the defendant. But he could not deduct the penalty added by extraordinary interest for defendants’s delinquency in not paying during the time allowed by law for that purpose, nor. could he deduct “ Groton water rates,” which are not “ taxes.” He also allowed for repairs necessary to “keep the premises in ordinary tenantable condition,” He could not allow for matter ornamental or matter of taste, nor for repairs to “ gas fittings’•’ or “plumbing,” being part of the defendant’s
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additions and “ improvements,” and allowed as such in the valuation thereof.
5. It rested in the discretion of the referee, subject to approval of the court at special term, to determine the amount of land, &c. to be set apart as the widow’s dower, and this matter is not properly the subject of review upon appeal. (Forrest v. Forrest, 25 N. Y. Rep. 514 .)
V. There was no error of law in the report, and the exceptions thereto are not well founded.
VI. The questions of fact arising before the referee were fully canvassed before the court at special term, upon the argument of the exceptions to the report. Its decision is conclusive as to all matters of fact. (Osborn’s adm’x v. Marquand, 1 Sandf. 457 .)
VII. There was no error of the referee in the admission or exclusion of testimony to the prejudice of the defendant.
Points on the question of assignment of dower, and of mesne profits.
I. If there was any “irregularity” in the judgment as respects the reference ordered in the judgment, it has been waived by the parties.
1. More than “ a year ” elapsed between the filing of the judgment and the giving the notice of appeal, or making this application. (2 R. S. p. 359, § 2.)
2. The parties have proceeded with the reference until it was completed, and the defendant has had the benefit of the delay. (Forrest v. Forrest, 8 Bosw. 653 . S. C. 25 N. Y. Rep. 514 . Claflin v. Farmers and Citizens’ Bank, Id. 296.)
II. If there were any defect in the proceeding before the judge at special term, in matter of form, or in any respect other than touching power or 'jurisdiction, then, as neither party complains of it, and the “substantial rights” of neither partyare affected thereby, the court must disregard it. (Code, § 176. 2 R. S. p. 425, § 78. Whitehead v. Pecare, 9 How. Pr. 35 . Bedford v. Terhune, 27 id. 422.)
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III. The court can indulge in no presumption which will tend to invalidate the judgment. The party obtaining the judgment is entitled to every presumption necessary to sustain it. Numerous cases illustrate the extent of this clear rule of appellate courts. (Otis v. Spencer, 16 N. Y. Rep. 611 . Viele v. B. and T. R. R. Co., 20 id. 184. Hoyt v. Hoyt, 8 Bosw. 521 .)
“It is incumbent on the appellant to take care so to present the facts upon which the case depends as to show affirmatively that an error has been committed. The court will presume nothing in favor of the party alleging error.” (Carman v. Pultz, 21 N. Y. Rep. 551 . Lewis v. Jones, 13 Abb. 427 . Grant v. Morse, 22 N. Y. Rep. 323 . Heroy v. Kerr, 8 Bosw. 204 . Richardson v. Dugan, Id. 212 . Lee Bank v. Satterlee, 17 Abb. 13 .)
IV. The judgment of the court at special term was final and complete in all respects; having disposed of all the issues and left no judicial function unexhausted in the justice who tried the cause.
1. The reference to admeasure the dower by metes and bounds and take the account of the rents, was merely a ministerial matter subject to the subsequent affirmance of the court. The judgment was final, and became complete when the report was confirmed, and is identical in all its characteristics with those pronounced final and approved in form by this court, and the Court of Appeals. (Swarthout v. Curtis, 4 Comst. 416. Lawrence v. Farmers’ Loan and Trust Co., 15 How. 57 .)
2. The same form of decree was usual in chancery proceedings before the Code. (Mills v. Hoag, 7 Paige, 18. Johnson v. Everett, 9 id. 639.)
3. The cases where courts have held judgments incomplete, not final, and amounting to a mistrial, have been where the court failed to determine all the issues presented by the pleadings, and are wholly distinguishable from this case. (See Buchanan v. Cheseborough, 5 Duer, 238 ; Griffin v. Cranston, 1 Bosw. 281 ; S. C. 5 id. 658; O’Brien v. Bowes,
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4 id. 657; Chamberlain v. Dempsey, 14 Abb. 241 ; S. C. 15 id. 1.)
4. If this was not a final judgment, then it was merely an interlocutory order as respects the reference, and the appeal, therefore, should be dismissed upon the notice served, because not taken within the thirty days allowed by law. (Lawrence v. Farmers’ Loan and Trust Co., 15 How. Pr. 57 . Cotes v. Carroll, 28 id. 436.)
Y. The court at special term, had power and authority in this case, being an equitable action to recover dower, to direct a reference to set it out, and compute the amount due for mesne profits.
1. By the constitution of this state the legislature has power “ to alter and regulate proceedings in law and equity.” (Constitution of N. Y., art. 6, § 6, &c. Phillips v. Gorham, 17 N. Y. Rep. 272 .)
2. By the judiciary act of 1847, section 77, this court has power given it to refer to a referee all matters formerly referred to a master in chancery. (4 R. S. Edm. ed. 568, § 77. Knickerbacker v. Eggleston, 3 How. Pr. 130 .) It has full chancery jurisdiction, and the rules and principles governing courts of equity apply to proceedings in equitable cases in it. (Forrest v. Forrest, 8 Bosw. 656 , and 25 N. Y. Rep. 510 .)
3. Under the Code, (§§ 468 and 469,) all rights of action may be prosecuted in the manner provided by it. In case an action cannot be had under it, “ the practice heretofore in use,” may be adopted so far as necessary. Where consistent with it the former “rules and practice of the courts,” in civil actions, “ continue in force subject to the power of the respective courts to relax, modify or alter the same.” So also by the rules of court, (rule 93,) where no provision is made by statute, or the rules of court, the proceedings in suits like this must be “ according to the customary practice as it heretofore existed in the Court of Chancery.” By virtue of these provisions various ancient rules of practice and modes of proceeding in law and equity have been retained, both by the
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Court of Appeals and the inferior courts ; and the prior practice is held to he “ abolished only in a qualified manner!’ (Hastings v. McKinley, 8 How. Pr. 175 . Averill v. Patterson, 10 id. 87. Miles v. Clarke, 2 Bosw. 711 . Palmer v. Palmer, 13 How. Pr. 364 . Bank of Genesee v. Patchin, 3 Kern. 314. Washington Life Ins. Co. v. Lawrence, 28 How. Pr. 435 .)
4. Whether then we regard this as a case of reference under the judgment, to set out this dower, and to take the account of these rents as specifically provided for by the Code or not, there can be no question of the power of the court in the premises to act, either under the Code or under the former practice. Every referee appointed under the authority of the Code, has “ generally-the powers vested in a referee by law,” before the Code. (Code, § 421.) This reference falls precisely within the provision of the Code, (§ 271, subd. 2,) for “ carrying the judgment into effect.” (Elmore v. Thomas, 7 Abb. 72 . Ketchum v. Clark, 22 Barb. 319 . Forrest v. Forrest, 8 Bosw. 656 . Same v. Same, 25 N. Y. Rep. 510 .)
If this should be even doubtful or erroneous, there can be no question of the propriety of this reference under the former equity practice. (Swaine v. Perine, 5 John. Ch. 482. Townsend v. Townsend, 2 Sandf. 711 .)
5. • The prayer of the complaint was for equitable relief. The court had power to grant “ any relief consistent with the case made by the complaint and embraced within the issue.” (Gode, § 275.) The judge tried and decided every issue, and the reference was ordered merely as a customary mode of administering the relief to which the court adjudged the plaintiff to be entitled. The court decided the plaintiff entitled to dower and rents and to a reference to ascertain the quantum thereof. The evidence adduced on the trial was insufficient, -and was not intended to enable the court to determine this. There was no evidence as to improvements on the land — repairs or taxes. The case does not find, or purport to find, that the parties sought to have or could have ha,d these matters determined on the trial. The proof concerning
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the same should have come from the defendants. They offered no proof whatever. A decision hy the court as to the quantum of dower and rents on the evidence would have been impossible without great prejudice to the defendants. The reference was for their benefit. The court could not survey or set out the dower by metes and bounds. The reference was, therefore, necessary to prevent a failure of justice. Moreover, this court is bound to presume, (if necessary in order to sustain this judgment,) as was the fact, that the parties designedly omitted to offer evidence as to these details, because they preferred to have the quantum of dower and rents ascertained by a reference ordered to carry the judgment into effect.

By the Court,

It was adjudged in this case that the plaintiff was entitled to dower in certain land at Harlem, in the city of New York, lying between Sixth and Seventh avenues, and running through from 125th to 126th street, (being one hundred and fifty feet wide by about two hundred deep,) and also to one third of the rents of such land (after certain deductions) from a certain day in the year 1855 to the present time, exclusive of any arising from improvements on such premises, made since their alienation. Judgment was rendered that the part of such land which should be set out by a referee, (who was thereby empowered to set the same out for such dower,) should be assigned to the plaintiff for the same, and that the defendant and all claiming under him should deliver possession thereof to her, and that the defendant should pay to the plaintiff, one third part of the rents and profits of such land for six years next preceding the entry of such judgment, to be ascertained by the same referee. Costs and an execution were also awarded to the plaintiff. Upon the report of such referee, duly confirmed, after exceptions heard, judgment has been entered and the roll filed, from which, and such confirmation, an appeal has been taken. The cases of Swartwout v. Curtis, (4 Comst. 416,) and Lawrence v. Farmers' Loan and Trust Co. ( 15 How. 57 ,) show such

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judgment to have been in proper form. It corresponds with forms of decrees formerly made in courts of chancery, (Mills v. Hoag, 7 Paige, 18; Johnson v. Everett, 9 id. 639,) and was not infected with any of the vices of the judgments in Buchanan v. Cheseborough, ( 5 Duer, 238 ;) Griffin v. Cranston, ( 1 Bosw. 281 ; S. C. 5 id. 658;) O’Brien v. Bowes, (4 id. 657;) and Chamberlain v. Dempsey, ( 14 Abb. Pr. 241 ; S. C. 15 id. 1.) In the first of these cases, (Buchanan v. Cheseborough,) a conditional reference was ordered, to ascertain an amount due, after, the general term should pass upon the liability of the defendant, a general pro forma verdict having been taken against him. In the second, (Griffin v. Cranston,) the first judgment (1 Bosw.) left a material issue of the time of cessation of a certain partnership undisposed of, and the second judgment did not purport to determine all the matters in issue. In the third, (O’Brien v. Bowes,) a condition attached to a judgment of dismissal of the complaint, that the plaintiff was not to apply for a trial of the questions of fact by a jury, was held to be repugnant, and rejected as surplusage. In the last, (Chamberlain v. Dempsey,) the amount due on the mortgage sought to be foreclosed was not determined on the' first trial, but on an order of reference made by a different judge, and on a second trial, a judgment, without disposing of the question of costs, was given, and a reference ordered, on which a different judgment was afterwards rendered.

The present action is certainly sustainable as one in a court of equity for the admeasurement of dower, over which such courts always had jurisdiction concurrently with courts of law. (1 Story on Eq. Juris. §§ 624 to 632. Badgley v. Bruce, 4 Paige, 98. Townsend v. Townsend, 2 Sandf. 711 .) If it be also an action of ejectment for the recovery of dower, there is no difficulty in the junction of the two. Indeed, courts of equity have always administered other equities in conjunction with such admeasurement, (Swaine v. Perine, 5 John. Ch. 482; Bell v. Mayor, &c. of New York, 10 Paige, 49,) and seem the more appropriate and even exclusive tribunals in some cases of the kind. (Van Dyne v. Thayre, 19 Wend. 162 .

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Cooper v. Whitney, 3 Hill, 95 . Balter v. Chase, 6 id. 482. Runyan v. Stewart, 12 Barb. 537 .) The facilities for taking an account in a court of equity of the rents and profits, would seem to render an action of an equitable character, or in a court of equity, most proper. But all the boundaries of jurisdiction, and distinctions between causes of action as legal or equitable, being removed, there seems no reason why all the relief to which the plaintiff is entitled should not be given in one action. Indeed, a court of equity when it has gained jurisdiction for one purpose, may retain it for other purposes, although they alone would not have constituted a primary ground of equity jurisdiction. The objection is, therefore, not one of jurisdiction, but of misjoinder of causes of action, and has.been waived by not being taken by answer or demurrer. (Code, §§ 144,148. Bank of Utica v. City of Utica, 4 Paige, 399. Ludlow v. Simond, 2 Caine’s Cas. 1. Truscott v. King, 6 N. Y. Rep. 147 .) But although the action may be fairly in this court, and' no objection has been made to an adjudication in it upon all the issues involved, it is said such court cannot use a referee to admeasure the plaintiff’s dower, and assess her damages by loss of rents and profits, instead of the three freeholders formerly required in an action of ejectment for dower, (2 R. S. 312, § 48, subd. 1; Id. p. 310, §§ 36 to 47,) or a special petition, (Id. 489, § 10.) The appointment of three freeholders utider such statute was clearly only a mode of supplying the defects of the machinery of a court of law, after giving judgment, in carrying it out, and to save the necessity of a new action or proceeding. Now, however, the only ordinary proceeding in á court to enforce or protect a right, or prevent a wrong, is, in the most general terms, an “ action.” (Code, § 2.) It can have but one form. (Code, § 69.) Every distinction between actions at law and suits in equity, and their forms, is abolished. (Id.) Every court, therefore, whether exercising legal or equitable jurisdiction in such proceeding, now possesses the former powers of both courts of law and equity to investigate disputed questions,
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by every mode peculiar • to either, and to make its judgment as to the rights of parties effectual. The Code expressly declares that “ all rights of action given or secured by existing laws, may be prosecuted in the manner provided by” it. (§ 468.) Every court has power, where an answer is put in, to grant relief consistent with the case made by the complaint, and embraced within the issue. (Id. § 275.) The court, in this action, had power, therefore, to admeasure and enforce the plaintiff’s right of dower, if it determined that she had' any under the case made. What part of the land the plaintiff was entitled to as dower, as well as the amount due her for her share of the profits withheld, were specific questions of fact involved in the issue made by the pleadings, and were, therefore, proper subjects of reference, and their determination was necessary to carry the judgment into effect. (Code, § 254.) There surely could be no doubt of the power of the court, in such an action, to admeasure the dower itself, if it had sufficient materials before it, after acquiring jurisdiction over the subject. If so, it could transfer the inquiry to a referee to aid in ascertaining it. The defendant waived every objection, except a want of jurisdiction, and even a right of appeal from the order of reference, by litigating before the referee without such appeal, and by filing exceptions to the report. (Combs v. Wyckoff, 1 Cai. 147 . Forrest v. Forrest, 8 Bosw. 653 . S. C. 25 N. Y. Rep. 510 . Claflin v. Farmers and Citizens’ Bank, Id. 296.) On appeal, also, such an error in the proceeding as admeasuring the dower by one referee instead of three, (as it does not appear that he was not a freeholder,) should be disregarded, as not affecting the substantial rights of the defendant. (Code, § 176.)

The plaintiff, of course, was only entitled to one third of the land, according to its value at the time of its alienation in 1854 to the defendant, under the statute of 1806, (1 R. L. 1813, 60, § 1,) and the Revised Statutes, (1 R. S. 740, § 1; Id. 742, § 17; 2 id. 490, § 13,) and was not to be allowed for any increase in value since, ( Walker v. Schuyler, 10 Wend.

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481 ,) or any improvements. (Coates v. Cheever, 1 Cowen, 460.) Ho evidence was given of any change in its value up to the time of the inquiry before the referee, of any improvements put upon the premises, except upon the house. Exclusive of the 'improvements the house could hardly have been worth as much at the time of the trial as at that of the alienation. Omitting the house, the relative value of the lots remaining to those assigned to the plaintiff must, most probably, have c'ontinued the same between those dates. The use of the house at its present valuation, including the cost of improvements made by the defendant therein, was assessed to make up the value of one third of the premises, exclusive of the valuation of the improvements in the house assigned to her for dower. There is no rule of law forbidding absolutely the assignment of such improvements as part of the dower, provided they are not taken, into account in admeasuring the dower, although if an assignment he otherwise practicable they are not to be included. (2 B. S. 490, § 13, subd. 2. Coates v. Cheever, 1 Cowen, 460. Bell v. Mayor, &c. New York, 10 Paige, 49, 72.) Such improvements could not well he separated from the house. The propriety of the exercise of the discretion of the referee in that respect was passed upon at special term and his decision should not he disturbed. (Forrest v. Forrest, ubi supra.) The other provision of the same statute (2 R. S. 490, § 13, subd. 2,) was complied with by deducting from the lands allotted for dower the value of the improvements.

Taxes, before the six years to which the inquiry was limited, being before October, 1857, were properly excluded, as was the rate paid for the use of Croton water by the defendant. Any amount paid for ornamental work or repairs to the additions or improvements was properly excluded. There was no evidence that the defendant insured the plaintiff’s interest in the premises or any thing more than his own; whether either he or she could have recovered, if he had so insured is doubtful, (DeLonguemare v. Tradesmen’s Insurance Company, 2 Hall, 589 ,) he was not entitled, therefore,

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to any premiums of insurance paid, unless shown to have been-for the plaintiff’s benefit. Eo errors of fact have been shown to have been committed by the referee.

The judgment and order confirming the report must, therefore, be affirmed, with costs.

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