Real Property Actions & Proceedings

ARTICLE 10

ACTION FOR DOWER
Section 1001. Limitation of action for dower.
1002. Action barred by assignment of dower.
1011. Necessary defendants.
1012. Who may be joined as defendants.
1013. Actions where defendants claim in severalty.
1021. Damages may be recovered; how estimated.
1022. Damages in action against alienee of husband.
1023. Damages where several parcels are affected.
1024. Damages apportioned between heir and alienee.
1025. Damages against grantee of premises subject to dower.
1031. Complaint.
1041. Interlocutory judgment for admeasurement.
1043. Dower, how admeasured.
1044. Report thereupon.
1045. Setting aside report.
1051. Fees and expenses.
1052. Fees of surveyor or commissioner in action for dower.
1061. Final judgment.
1062. Plaintiff may recover sum awarded; court may modify
judgment.
1063. Junior incumbrances; not affected by admeasurement.
1064. Appeal not to stay execution if undertaking is given.
1071. Plaintiff may consent to receive a gross sum.
1072. Defendant may consent to pay it; proceedings thereupon.
1073. Interlocutory judgment for sale.
1074. Direction that a part be laid off.
1075. Liens to be ascertained.
1076. Satisfaction or protection of lien.
1077. Payment of taxes, assessments and water rates out of
proceeds.
1078. Report of sale.
1079. Final judgment upon confirming sale.
1081. Certain provisions made applicable.
1091. Action to recover property by revisioner or remainderman,
after determination of particular estate.
1093. Collusive recovery not to prejudice infant.

S 1001. Limitation of action for dower. 1. An action for dower must be
commenced by a widow within two years after the death of her husband, if
the husband dies on or after April 6, 1954.
2. If the husband died before April 6, 1954, an action for dower must
be commenced by his widow within two years from April 6, 1954. If the
widow had, on April 6, 1954, less than two years under existing law in
which to bring an action for dower, the time so remaining is not
enlarged by this section. Nothing herein contained shall revive a cause
of action barred on April 6, 1954.

S 1002. Action barred by assignment of dower. The acceptance by a
widow of an assignment of dower in satisfaction of her claim upon the
property in question bars an action for dower and may be pleaded by any
defendant.

S 1011. Necessary defendants. Where the property in which dower is
claimed is actually occupied, the occupant thereof must be made
defendant in the action. Where it is not so occupied, the action must be
brought against some person exercising acts of ownership thereupon, or
claiming title thereto, or an interest therein, at the time of the
commencement of the action.

S 1012. Who may be joined as defendants. 1. In either of the cases
specified in section 1011, any other person claiming title to, or the
right to the possession of, the real property in which dower is claimed
may be joined as defendant in the action.
2. The people of the state of New York may be made a party defendant
in an action for dower where the people of the state of New York have an
interest in or a lien upon the lands affected thereby, in the same
manner as a private person. In such a case the summons must be served
upon the attorney-general, who must appear in behalf of the people. But
where the people of the state of New York are made a party defendant, as
herein provided, the complaint shall set forth, in addition to the other
matters required, detailed facts showing the particular nature of the
interest in or the lien on the said real property of the people of the
state of New York and the reason for making the people a party
defendant. Upon failure to state such facts the complaint shall be
dismissed as to the people of the state of New York.

S 1013. Actions where defendants claim in severalty. In an action to
recover dower, in a distinct parcel of real property of which the
plaintiff`s husband died seized, or in all the real property which he
aliened by one conveyance, 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.

S 1021. Damages may be recovered; how estimated. Where a widow
recovers, in an action therefor, dower in property, of which her husband
died seized, she may also recover, in the same action, damages for
withholding her dower, to the amount of one-third of the annual value of
the mesne profits of the property, with interest; to be computed, where
the action is against the heir, from her husband`s death, or, where it
is against any other person, from the time when she demanded her dower
of the defendant; and in each case, to the time of the trial, or
application for judgment, as the case may be; but not exceeding six
years in the whole. The damages shall not include any thing for the use
of permanent improvements, made after the death of the husband.

S 1022. Damages in action against alienee of husband. Where a widow
recovers dower, in a case not specified in section 1021, she may also
recover, in the same action, damages for withholding her dower, to be
computed from the commencement of the action; but they shall not include
any thing for the use of permanent improvements, made since the property
was aliened by her husband. In all other respects, the same must be
computed as prescribed in section 1021.

S 1023. Damages where several parcels are affected. Sections 1021 and
1022 do not authorize the recovery, against a defendant who is joined
with others, of damages for withholding dower, in any portion of the
property not occupied or claimed by him.

S 1024. Damages apportioned between heir and alienee. Where a widow
recovers dower in real property aliened by the heir of her husband, she
may recover, in a separate action against him, her damages for
withholding her dower, from the time of the death of her husband to the
time of the alienation, not exceeding six years in the whole. The sum
recovered from him must be deducted from the sum which she would
otherwise be entitled to recover from the grantee; and any sum recovered
as damages from the grantee, must be deducted from the sum, which she
would otherwise be entitled to recover from the heir.

S 1025. Damages against grantee of premises subject to dower. If the
defendant, in an action for dower, aliens the real property in question
after the filing of a notice of pendency of action and an execution
against him for the plaintiff`s damages is returned wholly or partly
unsatisfied, an action may be maintained by the plaintiff against any
person who has been in possession of the property under the defendant`s
conveyance, to recover the unsatisfied portion of the damages, for a
time not exceeding that during which he possessed the property.

S 1031. Complaint. The complaint in an action for dower must describe
the property claimed with common certainty, by setting forth the name of
the township or tract and the number of the lot, if there is any, or in
some other appropriate manner, so that from the description, possession
of the property claimed may be delivered where the plaintiff is entitled
thereto, and must set forth the name of the plaintiff`s husband.

S 1041. Interlocutory judgment for admeasurement. If the defendant
makes default in appearing or pleading or if the right of the plaintiff
to dower is not disputed by the answer, or if it appears, by the
verdict, report, or decision upon a trial, that the plaintiff is
entitled to dower in the real property described in the complaint an
interlocutory judgment must be rendered which, except as otherwise
prescribed in this article, must direct that the plaintiff`s dower in
the property, particularly describing it, be admeasured by a referee,
designated in the judgment, or by three reputable and disinterested
freeholders, designated therein, as commissioners for that purpose.

S 1043. Dower, how admeasured. The referee or the commissioners must
execute their duties in the following manner:
1. They must, if it is practicable, and, in their opinion, for the
best interests of all the parties concerned, admeasure and lay off, as
speedily as possible, as the dower of the plaintiff, a distinct parcel,
constituting the one-third part of the real property of which dower is
to be admeasured, designating the part so laid off by posts, stones, or
other permanent monuments.
2. In making the admeasurement, they must take into consideration any
permanent improvements, made upon the real property, after the death of
the plaintiff`s husband, or after the alienation thereof by him; and, if
practicable, those improvements must be awarded within the part not laid
off to the plaintiff; or, if it is not practicable so to award them, a
deduction must be made from the part laid off to the plaintiff,
proportionate to the benefit which she will derive from so much of those
improvements, as is included in the part laid off to her.
3. If it is not practicable, or if, in the opinion of the referee or
commissioners, it is not for the best interests of all the parties
concerned, to admeasure and lay off to the plaintiff a distinct parcel
of the property, as prescribed in the foregoing subdivisions of this
section, they must report that fact to the court.
4. They may employ a surveyor, with the necessary assistants, to aid
in the admeasurement.

S 1044. Report thereupon. All the commissioners must meet together in
the performance of any of their duties; but the acts of a majority so
met are valid. The referee, or the commissioners, or a majority of them,
must make a full report of their proceedings, specifying therein the
manner in which they have discharged their trust, with the items of
their charges, and a particular description of the portion admeasured
and laid off to the plaintiff; or, if they report that it is not
practicable, or, in their opinion, it is not for the best interests of
all the parties concerned, to admeasure and lay off a distinct parcel of
the property of which dower is to be admeasured, they must state the
reasons for that opinion and all the facts relating thereto. The report
must be acknowledged or proved, and certified, in like manner as a deed
to be recorded, and must be filed in the office of the clerk.

S 1045. Setting aside report. Upon the application of any party to the
action, and upon good cause shown, the court may set aside the report,
and, if necessary, may appoint new commissioners, or a new referee, who
must proceed, as prescribed in this article, with respect to those first
appointed.

S 1051. Fees and expenses. The fees and expenses of the commissioners,
or of the referee, including the expense of a survey, when it is made,
must be taxed under the direction of the court; and the amount thereof
must be paid by the plaintiff, and allowed to her, upon the taxation of
her costs.

S 1052. Fees of surveyor or commissioner in action for dower. A
surveyor, employed as prescribed by law, in an action for dower, or to
determine dower, is entitled to five dollars for each day actually and
necessarily occupied in surveying, laying out, marking, or mapping land
therein. Each assistant so employed is entitled to two dollars for each
day actually and necessarily occupied in serving under the surveyor`s
direction. Each commissioner appointed as prescribed by law to admeasure
dower is entitled to five dollars for each day`s actual and necessary
service.

S 1061. Final judgment. Upon the report being confirmed by the court,
final judgment must be rendered. If the referee or commissioners have
admeasured and laid off to the plaintiff a distinct parcel of the
property, the judgment must award to her, during her natural life, the
possession of that parcel, describing it, subject to the payment of all
taxes, assessments, and other charges, accruing thereupon after she
takes possession. If the referee or the commissioners report, that is
not practicable, or that, in his or their opinion, it is not for the
best interests of all the parties concerned, so to admeasure and lay off
a distinct parcel of the property, the final judgment must direct, that
a sum, fixed by the court, and specified therein, equal to one-third of
the rental value of the real property, as ascertained by a reference or
otherwise, be paid to the plaintiff, annually or oftener, as directed in
the judgment, during her natural life, for her dower in the property;
and that the sum so to be paid, be and remain a charge upon the
property, during her natural life. The final judgment may also award
damages for the withholding of dower.

S 1062. Plaintiff may recover sum awarded; court may modify judgment.
The plaintiff may, from time to time, maintain an action against the
owner, or a person who was the owner of the property, to recover any
instalment of the sum, so awarded to her for her dower, which became due
during his ownership, and remains unpaid. Or, if an instalment remains
due and unpaid, she may maintain an action to procure a sale of the
property, and enforce the payment of the instalments, due and to become
due, out of the proceeds of the sale. Such an action must be conducted
as if the charge upon the real property was a mortgage to the same
effect. If, at any time, it is made to appear to the court that the
rental value of the real property has materially increased or
diminished, the court may, by an order, to be made upon notice to all
the persons interested, modify the final judgment by increasing or
diminishing the sum to be paid to the plaintiff.

S 1063. Junior incumbrances; not affected by admeasurement. Where a
portion of the property is admeasured and laid off to the plaintiff as
her dower, a lien which is inferior to the plaintiff`s right of dower
attaches, during the life of the plaintiff, to the residue, or to the
portion or share of the residue which was subject to it, as if the
portion laid off to the plaintiff had not been a part of the property.

S 1064. Appeal not to stay execution if undertaking is given. An
appeal from a final judgment awarding to the plaintiff possession of the
part admeasured and laid off to her does not stay the execution thereof
unless the court, or a judge thereof, grants an order directing such a
stay. Such an order shall not be granted if an undertaking is given on
the part of the respondent, with one or more sureties approved by the
court, or a judge thereof, to the effect that, if the judgment appealed
from is reversed or modified, and restitution is awarded, she will pay
to the person entitled thereto the value of the use and occupation of
the part so admeasured and laid off to her, or of the portion
restitution of which is awarded, during the time she holds possession
thereof, by virtue of the judgment.

S 1071. Plaintiff may consent to receive a gross sum. In an action for
dower, the plaintiff may, at any time before an interlocutory judgment
is rendered, by reason of the defendant`s default in appearing or
pleading, or, where an issue of fact is joined, at any time before the
commencement of the trial, file with the clerk a consent to accept a
gross sum, in full satisfaction and discharge of her right of dower in
the real property described in the complaint. Such a consent must be in
writing, and acknowledged or proved, and certified, in like manner as a
deed to be recorded. A copy thereof, with notice of the filing, must be
served upon each adverse party who has appeared, or who appears after
the filing.

S 1072. Defendant may consent to pay it; proceedings thereupon. At
any time after a consent is filed, as prescribed in section 1071, and
before an interlocutory judgment is rendered, any defendant may apply to
the court, upon notice, for an order granting him leave to pay such a
gross sum. Thereupon the court may, in its discretion, and upon such
terms as justice requires, ascertain the value of the plaintiff`s right
of dower in the property, by a reference or otherwise, and make an order
directing payment by the applicant of the sum so ascertained, within a
time fixed by the order, not exceeding sixty days after service of a
copy thereof and directing the execution by the plaintiff of a release
of her right of dower, upon receipt of the money. Obedience to the order
may be enforced, either by punishment for contempt, or by striking out
the pleading of the offending party and rendering judgment against him
or her, in both modes.

S 1073. Interlocutory judgment for sale. Where the plaintiff`s consent
has been filed as prescribed in section 1071 and she is entitled to an
interlocutory judgment in the action, the court must, upon the
application of either party, ascertain, by reference or otherwise,
whether a distinct parcel of the property can be admeasured and laid off
to the plaintiff, as tenant in dower, without material injury to the
interests of the parties. If it appears to the court that a distinct
parcel cannot be so admeasured and laid off, the interlocutory judgment
must, except in the case specified in the section 1074, direct that the
property be sold by the sheriff, or by a referee designated therein; and
that, upon the confirmation of the sale, each party to the action, and
every person deriving title from, through, or under a party, after the
filing of the judgment-roll, or of a notice of the pendency of the
action as prescribed by law, be barred of and from any right, title, or
interest in or to the property sold.

S 1074. Direction that a part be laid off. In a case specified in
section 1071, where the property, or a part thereof, consists of one or
more vacant or unimproved lots, the plaintiff`s consent may contain a
stipulation to take a distinct parcel, out of those lots, in lieu of a
gross sum. In that case, the interlocutory judgment, instead of
directing a sale, may direct if it appears to be just so to do, that
commissioners be appointed to admeasure and lay off to the plaintiff a
distinct parcel, out of the vacant or unimproved lots; and, if there is
any other property, that it be sold, and a gross sum be paid to her out
of the proceeds thereof, as prescribed in sections 1075, 1076, 1077 and
1078. The plaintiff`s title to each distinct parcel, admeasured and laid
off to her, as prescribed in this section, is that of an estate of
inheritance in fee simple. In admeasuring and laying off the same, the
commissioners must consider quantity and quality relatively, according
to the value of the plaintiff`s right of dower in the vacant or
unimproved lots, out of which the admeasurement is to be made; which
must be ascertained, in proportion to the value of those lots, as
prescribed in sections 1075, 1076, 1077 and 1078, for fixing a gross sum
to be paid to her out of the proceeds of a sale.

S 1075. Liens to be ascertained. Before an interlocutory judgment is
rendered for the sale of the property, the court must direct a reference
to ascertain whether any person not a party, has a lien upon the
property, or any part thereof. But the court may direct or dispense
with such reference, in its discretion, where a party produces a search,
certified by the clerk, or by the clerk and register as the case
requires, of the county where the property is situated and it appears
therefrom, and by the affidavits, if any, produced therewith, that there
is no such outstanding lien. Except as otherwise expressly prescribed
in this article, the proceedings upon and subsequent to the reference
must be the same as prescribed by law where a reference is made in an
action for partition to ascertain whether there is a creditor not a
party who has a lien on the share or interest of a party.

S 1076. Satisfaction or protection of lien. Where the interlocutory
judgment directs a sale, if the right of dower of the plaintiff is
inferior to any other lien upon the property, the judgment may, in the
discretion of the court, direct that the property be sold either subject
to the lien, or discharged from the lien; and, in the latter case, that
the officer making the sale pay the amount of the lien out of the
proceeds of the sale.

S 1077. Payment of taxes, assessments and water rates out of proceeds.
Where a judgment, rendered in an action for dower directs a sale of the
real property, the officer making the sale must, out of the proceeds,
unless the judgment otherwise directs, pay all taxes, assessments, and
water rates which are liens upon the property sold and redeem the
property sold from any sales for unpaid taxes, assessments, or water
rates which have not apparently become absolute. The sums necessary to
make those payments and redemptions are deemed expenses of the sale.

S 1078. Report of sale. Immediately after completing the sale and
executing the proper conveyance to the purchaser, the officer making the
sale must make and file with the clerk a report thereof, showing the
name of the purchaser and the purchase-price paid by him, or, if the
property was sold in parcels, the name of each purchaser and the price
and a description of the parcel sold to him, the sums which the officer
has paid out of the proceeds of the sale, pursuant to the interlocutory
judgment, the purpose for which each payment was made, the amount and
items of his fees and expenses, and the net amount of the proceeds,
after deducting the payments.

S 1079. Final judgment upon confirming sale. Upon confirming the sale,
the court must ascertain, by a reference or otherwise, the rights and
interests of each of the parties in and to the proceeds of the sale, and
also what gross sum of money is equal to the value of the plaintiff`s
dower in the net proceeds of the sale, calculated upon the principles
applicable to life annuities. The court must thereupon render final
judgment confirming the sale and directing that the gross sum so
ascertained be paid to the plaintiff, in full satisfaction of her right
of dower and that the remainder of the proceeds of the sale be
distributed among the persons entitled thereto.

S 1081. Certain provisions made applicable. The provisions of law
relating to a sale in partition and to the distribution, investment, and
care of the proceeds, apply, as far as they are applicable, to a sale
made as prescribed in this article and to the distribution of the
proceeds of a sale, as prescribed in section 1079.

S 1091. Action to recover property by revisioner or remainderman,
after determination of particular estate. Where a tenant for life, or
for a term of years, suffers a judgment to be taken against him, by
consent or by default, in an action for dower, the heir or person owning
the reversion or remainder, may, after the determination of the
particular estate, maintain an action to recover the property.

S 1093. Collusive recovery not to prejudice infant. Where a widow, not
having a right to dower, recovers dower against an infant, by the
default or collusion of his guardian, the infant shall not be prejudiced
thereby; but when he comes of full age, he may bring an action of
ejectment against the widow, to recover the property so wrongfully
awarded for dower, with damages from the time when she entered into
possession, although that is more than six years before the commencement
of the action.