Stewart v. Smith

By the Court, Ingraham, J. The first objection to the assignment of dower by the commissioners is, that the commissioners should not admeasure dower in any lands except those in possession of the defendant when .the action was commenced. This would be in accordance with the findings of the referee, who reported that at the time of the commencement of this action the defendant was in possession of the premises, but I do not think it would be sufficient. The evidence before the referee showed that the defendant was not the owner, but was merely in possession of the premises. This is not enough. The statute (3 R. S. 791, § 2) requires [168] notice to be given to the owners of the land, claiming a freehold estate therein. This is not complied with by merely giving notice to the tenant or person in possession. Ward v. Kilts, (12 Wend. 137,) shows that notice to the owner is necessary, and that notice to the tenant is unnecessary. [New York General Term, February 2, 1863. Sutherland, Ingraham and Clerke, Justices.] I do not see how this difficulty can be obviated, in the present proceeding. The service of notice on Smith was evidently insufficient. Ho good could result from sending the case back to the commissioners, as their ¿dmeasurement would not affect the owner of the fee if he had no notice of the proceeding. The adverse party must have such notice. (Rathbun v. Miller, 6 John. 281. 15 id. 533.) The statute provides for a service, in certain cases, upon the tenant, but even then, the notice must be to, and the proceedings against, the owner of the freehold. We think, also, the commissioners erred in assigning the dower in such a maimer as to render the findings almost useless to both parties. With the consent of the widow, rooms in the'buildings can be assigned, but it seems not against her consent. Whether she did or did not assent in this case does not appeal. (See White v. Story, 2 Hill’s R. 543; 4 Bradf. Rep. 15.) And it has been said such a dower may, in cases not admitting of any other mode, be admeasured by assigning a portion of the profits, or an alternate occupation. (1 Cowen, 463.) It is not necessary, however, to discuss this branch of the case, as the proceeding cannot be sustained, for the reason first stated. The order appealed from should be affirmed, and the proceeding dismissed, unless the petitioner elects to amend the proceedings in ten days.