dollars ORDERED, that said report [and admeasurement] be, and the same is, in all respects confirmed; and that the fees and expenses of the referee [or, commissioners] are taxed at [or, be taxed by the clerk on notice to judgment may be entered accordingly [on settlement]. ]; and that final days' notice of Enter: [signature of judge by initials of name and title.] FORM No. 1938. Final judgment admeasuring dower, or fixing annual charge therefor.99 [Title of court and action.] day of [Recitals according to the mode of trial, or default, etc.. continuing as thus:] And the report of the referee [or, commissioners] appointed by an interlocutory judgment duly made and entered herein on the 19, having been filed on the day of 19 whereby it appears that the property mentioned in the complaint has been surveyed and a map annexed to said report as a part thereof, and that a distinct parcel thereof, hereinafter described, has been duly admeasured and laid off to the plaintiff as her dower [if damages have been recovered or reported, recite the fact], and the costs of the plaintiff having been duly adjusted at dollars: Now, after hearing A. T., of counsel for plaintiff, and T. Z., of counsel [or, and on proof of due notice of said report and this application for judgment, and no one appearing] for defendant in opposition, and on motion of A. T., attorney for plaintiff: IT IS ADJUDGED, 1. That said report and admeasurement stand confirmed. 2. That the premises hereinafter described have been and are admeasured and laid off to the plaintiff, for dower as the widow of and she is hereby awarded possession of the same during her natural life,2 subject to the payment of all taxes, assessments and other charges accruing thereupon after she takes possession. Said premises hereby awarded are bounded and described as follows: [full description.] 3 99 N. Y. Code Civ. Pro., § 1613. As to judgment for an annual sum when admeasurement cannot be made, see McIntyre v. Clark, 43 Hun, 352. The final judgment is enforcible by writ of assistance, or action of ejectment. See Jimeson v. Pierce, 78 App. Div. 9, 79 N. Y. Supp. 3. 1 Such a map should always be made. James t. Fields, 5 Heisk. (Tenn.) 394. 2 Agnew v. Lichten (Ill., 1887), 8 West. Rep. 344; Fisher v. Clements (Va., 1887), 11 Va. L. J. 372. 3 As to exception in case of mortgage assumed by husband's grantee, see Bartlett v. Musliner, 28 Hun, 235. [Or if it has been reported not practicable, or not for the interests of all the parties, to admeasure and lay off a distinct parcel, specify sum to be paid annually, or oftener, with a provision that the sums to be paid remain a charge upon the property during her natural life.]* 3. That the plaintiff do recover from the defendant [naming him if one of several — if damages are awarded: the sum of dollars damages for withholding her dower, with] dollars costs of this action [amounting together to dollars]. Enter: [signature of judge by initials of name and title.] FORM No. 1939. Consent of widow to accept gross sum.7 [As in partition, Form 2014 or 2015, except that if it be desired that the value shall not be fixed except by sale, substitute in last line, for "ascertained pursuant to law," the words "ascertained after sale pursuant to law."] FORM No. 1940. Notice of motion (or order to show cause) for leave to pay widow a gross sum.8 [Title and recitals (motion before the court) as in other cases; see Forms Nos. 815 and 818, pp. 1171 and 1174 of this volume, stating relief, as thus:] for an order [or, why an order should not be made] granting this defendant leave, in case a sale of said premises be directed to pay to plaintiff a gross sum to be ascertained pursuant to law under said consent, in full satisfaction and discharge of her dower right claimed in this action, and for such other and further relief as may be just. 4 N. Y. Code Civ. Pro., § 1613. 5 Reeves v. Reeves, 54 Ill. 332. 6 As to when costs are discretionary, compare McKeen v. Fish, 33 Hun, 28; Everson v. McMullen, 45 id. 578. 7 File before interlocutory judgment on default, or before commencement of trial; and serve copy with notice of filing on each adverse party who has appeared or who appears after filing. N. Y. Code Civ. Pro., § 1617. If not filed until after entry of interlocutory judgment, this is a mere irregularity. Freeman v. Ahearn, 64 App. Div. 509, 72 N. Y. Supp. 326. Not applicable where the estate is not for life, but for widowhood only. Scheu v. Lehning, 31 Hun, 183. But compare Bond v. McNiff, 38 N. Y. Super. Ct. 83, as to tenancy during minority of another person. For effect of widow's death after consent, see Robinson v. Govers, 138 N. Y. 425; Fulton v. Fulton, 8 Abb. N. C. 210; McKeen v. Fish, 33 Hun, 28. 8 N. Y. Code Civ. Pro., § 1618. An order granting this motion will terminate plaintiff's case. The affidavit will state the object of action and the proceedings, including filing of lis pendens, sufficiently to show that application for sale is not premature, and the fact of consent annexing copy, and, unless reference is to be had, evidence of age of widow, on which the court can compute the sum. FORM No. 1941. Interlocutory judgment 9 for sale to pay dower. [Title and recitals, as in other cases; reciting also that plaintiff's consent to accept a gross sum in lieu of dower to be ascertained (after sale), pursuant to law, has been filed; and that the referee has reported that a distinct parcel of the property cannot be admeasured and laid off to the plaintiff without material injury to the interest of the parties; and that the referee has reported as to liens.] IT IS ADJUDGED, 1. That said report stand confirmed. 2. That the plaintiff, as widow of C. B., is entitled to dower in the premises hereinafter described. 3. [May recite title as thus:] That W. Z. and Y. Z., children of C. B., deceased, mentioned in said complaint and report, are seized of said premises, with the appurtenances, as tenants in common, subject to the dower aforesaid [and also subject to have their estate and interest in said premises divested by the execution of the power of sale in the will of the said C. B., deceased, to carry out the trusts in the said will mentioned]. 4. That the said children of the said C. B. are each seized of one undivided part thereof, subject as aforesaid. 5. That the executors, upon the sale of said premises and the payment of costs and expenses of sale and satisfaction of dower, are entitled to receive the whole residue of the proceeds of said sale for the purposes of the trusts created in and by said will.] [As to direction for sale,10 see Partition, Form No. 1999.] 6. That upon the confirmation of the sale so to be made, each party to the action and every person deriving title from, through or under a party after the filing of the judgment-roll in [or, of the notice of the pendency of] this action, be barred of and from any right, title or interest in or to the property sold. 7. The premises so to be sold are bounded and described as follows: [full description.] [Report of sale by referee; see Chapter XVI.] 9 N. Y. Code Civ. Pro., §§ 16191622. The order for interlocutory judgment may be adapted from this and Form 1932. Final judgment will confirm the sale and direct as to distribution of proceeds. § 1624. 10 As to direction concerning a prior lien, if any, see N. Y. Code Civ. Pro., § 1622. If the husband's interest in the lands was an undivided one, only that interest should be directed to be sold. Card v. Pudney, 42 App. Div. 405, 59 N. Y. Supp. 278. FORM No. 1942. Order for final judgment upon sale to pay dower. [Title of action.] At a Special Term [etc.; see Form This cause having been regularly brought on for final hearing and judgment upon the pleadings, interlocutory judgment, and the report of sale by R. F., the referee [or, sheriff], pursuant thereto, filed the day of 19 [and recite any other papers used and on reading and filing proof of due notice of this application given to Z. T., attorney for defendant], and after hearing A. T., of counsel for plaintiff, and Z. T. [or, no one appearing], for defendant in opposition, and due deliberation being had; Now, on motion of A. T., attorney for plaintiff; IT IS ORDERED AND ADJUDGED, 1. That said report be and the same hereby is in all respects confirmed. 2. That the said referee [or, sheriff] pay and distribute said proceeds of sale as follows: [direct in detail.] 3. That each party to this action, and every person deriving title from, through or under a party after the filing of the judgment-roll [or, after the filing of the notice of the pendency of this action herein before mentioned], be and hereby is barred of and from all estate, right, title or interest in or to the property sold. FORM No. 1943. Affidavit to move for new trial in ejectment.11 [Title of court and action.] [Venue.] Y. Z., being duly sworn, says: I. That he is the defendant12 above named. 13 II. That this action is ejectment for [here briefly designate the premises], but is not founded on a right of entry for nonpayment of rent, nor an allegation of rent in arrear.' And this defendant was personally served with the summons within the State [or, appeared] and answered.14 day of 19, III. [State mode of trial, etc., as thus:] That the issues raised by said answer were tried at a Trial Term of this court, in the county of on the before Mr. Justice J. K. and a jury; and a verdict rendered for [plaintiff], upon which judgment in this action was first entered15 in the office of the clerk of said county, on the 19. Said judgment was against deponent, and the judgmentroll was duly filed in said office on the day of within [three] years past. day of and IV. That all costs and damages included in said judgment, other than for rents and profits, or use and occupation, have been paid to plaintiff. [Or, if unpaid, state as thus:] IV. That said judgment included dollars costs; but no damages for withholding the premises other than the value of rents and profits or use and occupation [except the sum of dollars], which costs [or, which damages and costs, amounting together to dollars] 11 Not applicable in an equitable or statutory action to test the validity of a will. Shumway v. Shumway, 42 N. Y. 143; Marvin v. Marvin, 11 Abb. Pr. (N. S.) 102; s. P., Truitt v. Truitt, 37 Ind. 514 (specific performance or creditor's action); Over v. Moss, 41 id. 463 (summary proceedings). The first application, being matter of right, may be ex parte. Whitlock r. Vancleave, 39 Ind. 511. On the second, give notice. N. Y. Code Civ. Pro., $$ 1525, 1526. If practicable, serve the party. See Vol. I, p. 385, etc. The order may still, as formerly, be made before judgment. Post v. Moran, 61 How. Pr. 122. 12 If heir, devisee or assignee, state the fact, and when and how he became such. See Howell v. Leavitt, 90 N. Y. 238. 13 Compare Christie v. Bloomingdale, 18 How. Pr. 12, with N. Y. Code Civ. Pro., §§ 1525, 1528. 14 N. Y. Code Civ. Pro., §§ 445, 1528. 15 Chautauqua Co. Bank v. White, 23 N. Y. 347. |