
    *Jackson, ex dem. C. Miller, against Hixon.
    Where, on ap-⅛⅜⅛⅛ erhaibeen duly pursuant to the S^tf’etTsess' 10. ch. íes. ⅛ utes, 488.) and there has been review-,Pof the theCadmeSre menc uiST'^e-elusive '⅛00”" action óf ejectment brought by the widow, as to the part toreco e"utled
    THIS was an action of ejectment brought to recover lands assigned to the lessor of the plaintiff for her dower, as the widow of Benjamin Depuy, jun., deceased, by admeasurers of dower, appointed for that purpose, by the surrogate of Ulster county, upon the petition of the widow. The cause was tried at the Ulster circuit, in November, 1818, before Mr. Justice Yates.
    
    The counsel for the plaintiff offered in evidence the proceedings before the surrogate, and the report and admeasurement of the commissioners, which evidence was objected to by defendant’s counsel; because, by the order of the surrogate, it appeared, that the husband did not die seised, and the re^urn the admeasurers did not show that they had awarded the dower according to the situation and value of the land at the time of alienation. But the otiection ivas overruled by the . J JUClge.
    The plaintiff’s counsel then read a notice served on the defendant’s attorney, in the afternoon preceding the trial, to produce at the trial a deed from Cornelius Bruyn to Benjamin Depuy, jun. in fee, for a certain farm and tract of woodland, now possessed by the defendant; and, also, a deed from Jhn-jarnin Depuy, jun. to Cornelius Bruyn, for the same lands, and called on the defendant to produce the deeds, which not being done, the plaintiff proceeded to give parol evidence of their execution and contents, which was objected to, under the circumstances, but the objection was overruled by the judge. Two witnesses testified, that they were present at the execution of the deed of the premises, about the year 1783, from Cornelius Bruyn to Benjamin Depuy, jun. in fee, and subscribed their names as witnesses to the deed. That Benjamin Depuy, jun. continued in possession, as owmer in fee, of the premises so conveyed, a number of years ; and that, after he became so seised, he married the lessor of the plaintiff. That a mortgage was executed, at the same time, by Depuy to Bruyn, to secure the purchase *money ; and that Depuy, afterwards, reconveyed the premises to Bruyn, and lived a few years on the premises, as his tenant; and the same have, by several mesne convey-anees, become the property of the defendant. The admeasurers testified, that they surveyed the land and premises, and estimated the value according to its situation at the time it was owned by Benjamin Dejm-y, jun. ■
    From the proceedings before the surrogate, it appeared that, on the petition of the widow, he granted an order to three freeholders, as admeasurers, &c. “ to lay off, as speedily as may be, one third part of the lands and tenements mentioned in the petition of the said C. M., as, and for her dower, so as the same lands were possessed by the said B. D. during the coverture,” &c.
    The report of the admeasurers stated, that the premises consisted of a house, barn, and garden, and a piece of land, which they described by metes and bounds, and of which they allotted to the widow lots 1, 2, 3, 4, 5, and 6, as marked on a map annexed to their report, and which were particularly bounded and described. And they admeasured and allotted to the widow 16 feet and a half of the west end of the barn and stables, 6 and a half feet at the east end of the dwelling house of the defendant, with that part of the cellar underneath the same, and that'part of the garret above the same, with the privilege of the stair-way into the garret and cellar, in common with the defendant; also, the use of a spring of water, and the foot-path leading thereto, and the privilege of the road to the barn, and the path to the garden, and of a road over the land of the defendants, to the lots so allotted to the -widow.
    A verdict was taken for the plaintiff, subject to the opinion of the court, on a case made.
    
      Foot, for the plaintiff,
    contended, 1. That the parol evidence of the deeds, under the circumstances of the case, was properly received.
    2. The dower having, in this case, been duly laid off by the admeasurers, pursuant to the statute, (sess. 10. ch. 168. s. 3. 1 N. R. L. 60, 61. 2 Rev. St at. 488.) and no appeal having-been made *from the proceedings by the surrogate, (s. 10.) it is conclusive.
    Sudani, contra.
    The return of the admeasurers of dower did not correspond with the order of the surrogate. It does not appear, that the husband died seised of the premises, nor that they made their estimation or admeasurement according to the value of the land, at the time of alienation. (Dorchester v. Coventry, 11 Johtis. Rep. 510.) The admeasurers are required by the act, (s. 6.) to make a full and ample report of their proceedings to the surrogate, who is to enter the same as matter of record in his office. It is an ex parte proceeding under the statute, and the widow proceeds at her peril.
    The defendant may object, that the dower has not been assigned according to the value of the land at the time of alienation. The commissioners have no power to call a jury, and if the objection cannot be heard, the party is deprived of the right of having the fact tried by a jury. (2 Johns. Rep. 484.) The widow, in this case, has waited 14 or 15 years after the death of her husband, before she makes any application for dower. It is true, that the statute gives a right of appeal to this court, from the proceedings before the surrogate ; but then the matter is heard on affidavit, and is to be tried by affidavit, not by a jury. (Ca.se of Watkins, 9 Johns. Rep. 245. Gardinier v. Rpikeman, 10 Johns. Rep. 368.)
    
    Again; the party is not bound to appear before the commissioners ; and if he should appear, and inform them that he had witnesses ready to prove the facts stated, he would be told that the commissioners had no power to examine witnesses.
    
      Foot, in reply.
    We did not rely on the proceedings before the surrogate as evidence of title; but produced the deeds, or evidence of their contents, which proved the seisin of the husband of the lessor. We referred to the proceedings, merely to show the extent to which the plaintiff was entitled to recover. The proceedings before the commissioners are not ex parte ; notice of the application to the surrogate %rast be given to the adverse party. (Rathbun v. Miller, 6 Johns. Rep. 281.) The statute has authorized a particular mode of ascertaining dower otherwise than by a jury.
   Per Curiam.

The plaintiff proved that the lessor was entitled to dower, as the widow of Benjamin Bepuy, jun., and that the admeasurers, by their report, filed in the surrogate's office, lmd assigned to her the lands, &c. now claimed, by certain metes and bounds. The defence consisted of exceptions to the proceedings and report of the admeasurers ; because they had not pursued the order of the surrogate ; and because they had assigned according to the value of the land at the time of the death of the husband, when they ought to have taken its value at the time of its alienation by him.

By the 10th section of the statute, the Supreme Court are authorized to “ review the proceedings, and do therein what shall be just,” provided the party aggrieved, within thirty days after filing the report of the admeasurers, gives notice, in writing, of the causes of complaint, and of his intention to apply to this court for relief: and then, “ the question of seisin, and any other question which may arise, may be tried by a jury, or on a feigned issue, or in some other mode which the court may prescribe.” (10 Johns. Rep. 368. 9 Johns. Rep. 245.)

Here has been no appeal or review ; and, until the admeasurement is reversed, it must be conclusive, in an action of ejectment, as to the part belonging to the widow. We are of opinion, therefore, that the plaintiff is entitled to judgment.

Judgment for the plaintiff, 
      
      
         See Jackson, ex dem. Totten, v. Aspell, 20 Johns. Rep. 411. Jackson v. Vanderkeyden, post. 168.
     