Trustees of New York & B. Bridge v. Leary

DYKMAH, J. This is a motion addressed to the general term in the first instance for an order to compel restitution of the sum of $6,711. Previous to 1893 proceedings were instituted for the condemnation of real property of Thomas J. Leary, under the right of eminent domain, for the purposes of the Hew York & Brooklyn 1003 Bridge, and they were conducted to completion. The sum of $31,-000 was awarded to Leary as compensation for the premises so condemned. There was a mortgage upon the premises, and, after deducting the amount of that mortgage, which was paid from- the award, one-third of the remainder was $6,711. Subsequent to the malting of the award, Leary made an application to the court for the payment of that sum to him. The application was opposed by his wife, who claimed that the money should be invested during the lifetime of the husband, and that her inchoate right of dower in the fund should be recognized and protected. Her application was denied, and an order was made which directed the money, to be paid to her husband. Upon the appeal to the general term that order was reversed (27 N. Y. Supp. 597), and the order of the general term was subsequently affirmed in the court of appeals. In the meantime, however, Leary had obtained possession of the fund, and now a motion is made to the general term for an order which shall compel him to make restitution, by the payment of the sum to the treasurer of Kings county, in accordance with the order made and entered upon the decision of the general term. The law applicable to this motion was settled by the general term and the court of appeals,—that, where real property belonging to a married man is taken by the exercise of the right of eminent domain during coverture, an absolute title is required, divested of any right of dower existing in his wife, but her inchoate rights as between herself and her husband were not extinguished, but must be recognized and protected as between her and her husband. Such being the settled law applicable to this case, there remains nothing to be said on this application. The rights of the wife can only be protected by an order such as now sought for by the wife. The motion must be granted, with $10 costs. All concur.