Peart v. Peart ( 1888 )

Haight, J.

The action is for dower. The complaint contains but one count, and alleges that the plaintiff is the widow of Bichard Peart, deceased, and that he died seized of two distinct parcels of real estate, situate in the city of Bochester, describing it; that she is entitled to dower in such premises; and that the parcel first described is actually occupied by the defendants John H. Foley and George W. Duncan; and that the premises secondly described are actually occupied by the defendant Joseph B. Peart, together with his wife, the defendant Mary Peart, and her children, the infant defendants Bi chard Peart, James Peart, Minnie Peart, Elizabeth Peart, and Anna Peart. Section 1597 of the Code of Civil Procedure provides that, “ where the property in which dower is claimed is actually occupied, the occupant thereof must be made defendant in the action. ” Section 1599 provides that, “in an action to recover dower in a distinct parcel of real property of which the plaintiff’s' husband died seized, * * * all the persons in possession of or claiming title to the property, or any part thereof, may be made defendants, although they possess or claim title to different portions thereof in severalty.” It will beobserved that the parcels of real estate described are occupied by different persons, and, under ttie former section of the Code quoted, they must be made defendants, and that under the last section quoted, where the action is to recover dower in a distinct parcel, all persons in possession, etc., may be made defendants, although they possess portions in severalty. In this case, however, there are two distinct parcels described, occupied by different persons, and we consequently conclude that the right of action for dower in each is separate, and that the causes of action should be separately stated and numbered.

The complaint, in its first clause, sets forth the provisions of the will of Bichard Peart, in which he purports to devise two parcels of real estate. In the fourth clause of the complaint it is allegedthat, upon the death of Bi chard Peart, the several lots of land and premises descended to the heirs at law of the deceased. If the real estate devised by the will is the same as that of which the complaint alleges he died seized, there are conflicting allegations, which should be explained and made more definite and certain by amendment. Again, the description of the premises contained in the third clause of the complaint, especially the.second parcel, does not conform to the requirements of sections 1511 and 1606 of the Code, and should be amended. The order appealed from should be reversed, and motion granted as to the matters herein designated, with $10 costs and disbursements. So ordered.

Barker, P. J., Bradley and Dwight, JJ., concurred.