In re City of New York , 248 A.D. 604 ( 1936 )

Order computing the amount to be invested for the protection of the dower right of Anna Semken, as the wife of Frederick Semken, in an award for lands of the husband taken by the city of New York in condemnation proceedings, affirmed, in so far as an appeal therefrom is taken, with ten dollars costs and disbursements. The Special Term correctly declined to deduct from the award the amount of the attorneys’ fees incurred by the husband in the condemnation proceedings, before computing the one-third dower interest required to be deposited for the protection of the inchoate right of dower of the wife. Upon the concurrence of marriage and seizin, such as existed here, the inchoate right of dower vested in the wife, subject to becoming consummate in the event the wife survived the husband, or extinct in the event the husband survived the wife. It thus had existence prior to and precedence over any lien attaching to the husband’s property subsequent to the above occurrence, where such lien was founded upon the obligation of the husband in which the wife did not join. (Matthews v. Duryee, 45 Barb. 69; Thompson Real Prop. § 830.) Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur. [See 268 N. Y. 183.]