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upon default was opened on the application of the wife, on the ground that she had not been served with notice, and the judgment was modified so as to provide that one-third of the compensation for the property, after the payment of liens, should be paid into court to abide further order. That judgment has been acquiesced in without appeal, and its provisions have been performed. The compensation for the premises condemned was $31,000. One-third of the equity, after the payment of a mortgage, is $6,711, and that is the sum of money now involved. Subsequently, the husband made application to the court for the payment of this last sum to him. The wife opposed such application, and demanded that the money be invested during the lifetime of the husband, and that her ir. choate right of dower in the premises be recognized and protected. Her application was denied, and an order was
made which directed the money to be paid to the husband. Upon that motion no one appeared but the husband and wife, and the controversy tween them exclusively. The wife has appealed from the order, and the question involved is whether, in proceedings for the condemnation of real property under the right of eminent domain, the inchoate right of dower of a wife is to be recognized and protected in the proceeds as against her husband.
Where real property belonging to a married man is taken for a public purpose by the exercise of the right of eminent domain during the coverture, upon an appraisement and payment of the value to the owner of the fee, an absolute title is acquired, divested of any inchoate right of dower existing in his wife. So much is fundamental, resulting from the nature of the proceedings, and the theory upon which the power of the sovereign to condemn private property for a public use is based. That theory is that the people, in their right of sovereignty, are deemed to possess the original and ultimate property in all lands within the jurisdiction of the state, and may resume the possession again to meet public necessities. That was also the decision of the court of appeals in the case of Moore v. Mayor, etc., 8 N. Y. 110. But that does not seem to dispose of the question involved in this appeal. Here the question arises between the husband and the wife over a fund which may be deemed real estate, as well as the surplus arising from a sale upon the foreclosure of a mortgage upon the property of the husband, in which the wife had joined. In that case the inchoate right of dower is held to attach. Matthews v. Duryee, 43* N. Y. 525. In the case of Miller v. Van Voorhies, 20 N. Y. 412, it was said the inchoate rights of the wife are entitled to protection as much as the vested rights of a widow. The case of Moore v. Mayor, etc., decided that the wife had no interest in the lands of her husband which required compensation to be made to her where they were taken for a public purpose; that, while the husband lived, he represented the absolute fee which the statute vests, and concludes persons upon the confirmation of the report of the commissioners. But is that decisive of this appeal? In the case of Simar v. Cana. day, 53 N. Y. 304, it is said, in the opinion of the court:
"We think that it must be considered as settled in this state, notwithstanding Moore v. Mayor, etc., and some dicta in other cases, that as between a wife and any other than the state or its delegates or agents, exercising the right of eminent domain, an inchoate right of dower in lands is a subsisting and valuable interest, which will be protected and preserved to her, and that she has a right of action to that end."
This limitation of the Moore Case materially circumscribes its operation, and leaves it to stand as an authority only as between the wife and the state and its delegates. In the Simar Case a husband and wife had joined in a conveyance of his land, the sale being induced by the fraud of the grantee, and it was held that the wife had a cause of action against him for damages sustained by the loss of her inchoate right of dower. This limitation of the Moore Case was also noticed in the opinion in the case of Doty v. Baker, 11 Hun, 222, where it was held that a release by a wife of her inchoate right of dower in the lands of her husband was a good consideration for his payment or promise to pay her a portion of the purchase money. In the case of Smart v. Haring, 14 Hun, 276, it was held that such a release by the wife was a good consideration for such a promise, and that a conveyance of property to her in pursuance of such agreement is valid, except as to creditors, and is valid as to them to the extent of the value of such inchoate right, computed according to the rule laid down in Jackson v. Edwards, 7 Paige, 408. Where a husband, in order to induce his wife to relinquish her right of dower in certain lands which he wished to sell, agreed to give her $70 a year during her life, the release of her dower was a valuable and sufficient consideration for the promise. Foster v. Foster, 5 Hun, 557; Garlick v. Strong, 3 Paige, 440. In the case of Jackson v. Edwards, 7 Paige, 408, the chancellor laid down the rule for computing the value of the wife's contingent right of dower during the life of her husband. That case was decided in January, 1839, and in 1840 the legislature enacted a law which provided for settling the rights of married women in the manner stated by the chancellor for ascertaining the value of the inchoate right of dower of married women in case of a sale of premises and of securing the money by investment.
Laws 1840, c. 177.
Dower is highly favored in equity. The right of a doweress is a legal and moral right to sustenance out of the husband's estate, and in that respect she is in the care of the law. 1 Story, Eq. Jur. § 629. In view of the authorities, therefore, and also upon principle, our conclusion is that an inchoate right of dower in lands taken by right of eminent domain is a subsisting interest, which will be protected. The right of the wife in the fund involved in this appeal should be settled in accordance with the rule laid down by the chancellor in Jackson v. Edwards, supra, and the order should be reversed, with $10 costs and disbursements.
(75 Hun, 608.)
VILLAGE OF NEW ROCHELLE V. LANG. (Supreme Court, General Term, Second Department. February 12, 1894.) INJUNCTION-BUILDING WITHIN FIRE LIMITS OF VILLAGE.
Injunction will not lie to restrain the building of a wooden house within the fire limits of a village, in violation of a village ordinance. Appeal from special term, Westchester county.
Action by the village of New Rochelle against Fredericka Lang to restrain the construction of a frame building on Main street in said village. From an order vacating a preliminary injunction, plaintiff appeals. Affirmed.
Argued before PRATT and CULLEN, JJ.
CULLEN, J. This is an appeal from an order denying an injunction to restrain the defendant from constructing a wooden building in the village of New Rochelle. The injunction was properly denied. We think that the plaintiff had no standing to main. tain the action. "It is no part of the province of a court of equity to enforce the penal laws of the state or the by-laws of a corporation by an injunction unless the act sought to be restrained is a nuisance.” Mayor, etc., v. Thorne, 7 Paige, 261. The same rule was held in Village of Brockport v. Johnston, 13 Abb. N. C. 468. Even if the act were a nuisance, the remedy was by indictment, or in equity only at the suit of the people, or of some private person who alleged special damages. The provision of the statute (chapter 306, Laws 1876) authorizing the village to "prohibit, restrain, and prevent" gave the plaintiff no standing in equity to bring an action otherwise not maintainable by it. It provides for restraint not by injunction, but by the means placed in the power of the village penalties, etc. We have also grave doubts as to the validity of the ordinance enacted. The village is empowered to fix a fire district, and “to prohibit, restrain, and prevent within said fire district the construction of any frame or wooden building for any purpose whatever.” The ordinance passed by the trustees prohibits the erection of any such building within the limits named without the consent of the trustees. This is a different prohibition from that authorized by the statute. The law authorized the establishment of a district in which there should be no wooden buildings. The trustees have fixed the district in which there may or may not be wooden buildings, as the trustees pleased. The order appealed from should be affirmed, with $10 costs and disbursements.
(75 Hun, 597.)
ROBERGE V. WINNE et al.
(Supreme Court, General Term, Second Department. February 12, 1894.) EXECUTION-ISSUANCE-JUDGMENT IN EQUITY.
In an action for specific performance of a contract to give a mortgage on land, a judgment for plaintiff, which also provides that the land shall "be subject to, and bound by, the lien of the judgment herein directed for said $3,858.75," is not a judgment at law for a sum of money, but is a judgment in equity, and execution thereon for the sale of the property cannot be issued.
Appeal from special term, Westchester county.
Action by Franklin P. Roberge against Maria N. Winne and Elizabeth Cavannah to set aside a deed of certain premises from defendant Winne to defendant Cavannah, and to enforce by specific performance the execution and delivery of a bond and mortgage of $3,500 which the complaint alleged that defendant Winne had agreed to execute and deliver to plaintiff. A judgment was en: tered by which it was decreed “that the agreement set forth in the complaint be specifically performed, and that the defendant Maria N. Winne, in her own proper person, within ten days from the entry and service of a copy of the decree,
execute and deliver to the plaintiff a good and sufficient bond and mortgage" on the property mentioned in the complaint for the sum of $3,858.75, to be dated January 3, 1893, and to be payable within one year thereafter. The judgment thereby decreed that the deed from the defendant Winne to the defendant Cavannah should be canceled of record, and concluded with these words: “And it is further ordered, adjudged, and decreed that the real property of the defendant Maria N. Winne, herein described, be subject to and bound by the lien of the judgment herein directed for said $3,858.75, and for said $281.49, the costs." After the entry of such judgment. defendant moved for a stay of proceedings on the judgment pending an appeal taken therefrom. The motion for a stay was denied, and an order was entered by plaintiff's attorney containing a provision as follows: "Thať plaintiff may issue execution for a sale of said property to satisfy the judgment and costs decreed in the above-entitled action." Execution was issued accordingly, and defendant's land sold thereunder. From the order granting leave to issue said execution, and from an order denying a motion to vacate the sheriff's certificate of sale, defendants appeal. Reversed.
For decision on appeal from the judgment, see 24 N. Y. Supp. 562.
Argued before PRATT and CULLEN, JJ.
PRATT, J. These are two appeals by the defendant Winne from orders made at special term,- First, from an order granting leave to issue execution for the sale of real property; and, second, from an order denying defendant's motion to vacate the sheriff's certifi
cate of sale. The action is in equity, brought to set aside a deed of premises described in the complaint, made by the defendant Winne to the defendant Cavannah; and to enforce by specific performance the execution and delivery by Winne to the plaintiff of a bond and mortgage for $3,500 on said premises. In December, 1891, plaintiff owned certain real estate in New Jersey, and entered into a contract with the defendant Winne, whereby plaintiff agreed to convey said real estate to' said Winne, and defendant Winne agreed to assign to plaintiff a mortgage for $3,500, representing that it was a purchase-money mortgage on property in the city of New York, and that there were no prior liens on said premises, except a lien for $21,000. The plaintiff, in compliance with the agreement, conveyed said New Jersey premises to the defendant Winne, by proper deeds of conveyance, in the month of December, 1891. It appeared shortly after that the premises in New York were incumbered by other liens to the extent of $33,000, which were prior to the mortgage which the defendant Winne was to assign to the plaintiff. Thereupon plaintiff and defendant Winne entered into a new agreement, by which the defendant Winne agreed to execute and deliver to plaintiff a mortgage upon the premises in question in the sum of $3,500, payable in one year. The defendant Winne failed to execute and deliver this mortgage to plaintiff, who there. upon brought this action for a specific performance of the contract, and that she be required to execute and deliver the bond and mort. gage above referred to. The court, at special term, gave judgment for plaintiff, directing the defendant Winne to execute a bond and mortgage on the real estate in question to the plaintiff, to be dated January 3, 1893, conditioned for the payment of the sum of $3,858.
75, on January 3, 1894, with interest at 6 per cent. per annum; and • further decreed that “the said property of said defendant be subject
to and bound by the lien of the judgment herein directed for said $3,858.75, and for said $281.49 costs." The defendant Winne there. upon moved for a stay of proceedings, and on the 25th day of February, 1893, the court made an order denying defendant's motion for a stay of proceedings, and directing that the plaintiff “may issue execution for a sale of said property to satisfy the judgment and costs decreed in the above-entitled action." It seems to us that the court erred in making the order that execution issue for a sale of the property to satisfy the judgment. The judgment directed defendant Winne to execute and deliver to plaintiff her bond and mortgage in the sum of $3,858.75, to bear date January 3, 1893, payable in one year from date, with interest at 6 per cent. It also decreed that the real property be subject to and bound by the lien of said judgment for said $3,858.75, and for $281.49 costs.
It was in all respects a judgment in equity, requiring the defendant to do a specific act, and was a final judgment. In no sense can it be considered a judgment at law for a sum of money. Without discussing the question whether a final decree can be altered or amend. ed unless it contains some provision for such an application, it is sufficient to say that such an alteration or amendment cannot be made except on due notice. Here a judgment in equity is, in effect,