Vadney v. Thompson , 6 N.Y. St. Rep. 395 ( 1887 )

Learned, P. J.:

This is is an appeal from an order setting aside a verdict as against the evidence. Whatever the merits of the case, we do not think this verdict can stand. This is an action for dower; therefore triable by a jury, unless a jury trial be waived. (Code, § 968.) Such trial was not waived, and the case was tried before a jury.

The answer of some defendants admits the marriage and the death of the testator, and. denies all other allegations. That of other defendants, in addition, avers ownership in themselves .severally of the premises in which dower is claimed. Thus the principal dispute was as to the ownership by the testator of the premises during the marriage.

The only question submitted to the jury was, whether certain ■deeds, in which the testator was grantee, were delivered to him unconditionally; To this they answered, “Yes.” This was neither :a general, nor a special, verdict. (Code, § 1186.) They did not find .that the plaintiff was- entitled to dower; nor did they find that the ■testator was seized of an estate of inheritance in the premises •during the marriage. They passed only upon one fact, which bore upon the issue, and which probably was controlling. But if we take the facts admitted in the pleadings, and add to those facts the fact found by the jury, we cannot, from these alone, decide whether plaintiff is entitled to dower or not. Nothing is said in the pleadings about these deeds. There should have been a general vex’dic't Tor or against the plaintiff. Or if, as it would seem, no fact but the .testatox-’s ownex-slxip was in issue, then, perhaps, there might have been a finding that the testator was, or was not, seized of an estate ■of inheritance in the premises during the marriage. The case seems to have been submitted to the jury as if the case wex-e triable by the ■court, and the court were afterwards to make such other findings as might be necessary. (Code, § 971.) But on that verdict it would not appear that the plaintiff was entitled to dower. (Code, § 1607.)

Neither party seems to have objected to the course which was taken. We think it best, therefore, simply to affirm the order, without costs to either party on the appeal.

L andón and Math am, JJ., concurred.

•Order affirmed,' without costs to either party on appeal.