
    Mary Stewart, Appellant, v. Andrew Smith, Respondent.
    No notice is required to be given to the owner of the land, claiming a freehold estate therein, of proceedings to admeasure dower as a mere supplement to an action of ejectment, in which the plaintiff has succeeded in establishing her right of dower.
    Such proceeding is governed by the provisions of section fifty-five of the title treating of the action of ejectment. (2 B. S., 303.)
   Hogeboom, J.

It is by no means clear that this order is appealable. If it be regarded as in effect an order granting a new trial, then the appeal is ineffectual for want of the necessary stipulation that in the event of its affirmance judgment absolute shall be rendered against the appellant. If it he regarded as made after judgment, then it seems to me questionable whether it is in a special proceeding or upon a summary application in an action after judgment. (Code, § 11.) But as this point has not been discussed by counsel, it may be well to examine the order on its merits.

I think the Supreme Court were in error in supposing that, in a case like this, notice of the proceedings to admeasure dower was necessary to he given to the owners of the land claiming a freehold estate therein. This is not an original proceeding in this court for the appointment of admeasurers of dower (2 R. S. 488,) but a mere supplement to an action of ejectment in which the plaintiff has already succeeded in establishing her right to dower. The case is, therefore, governed by the provisions of section 55 of that title of the Revised Statutes which treats of the action of ejectment, (2 R. S., 303, 311, 312, §§ 48, 50), and not by the title before quoted.

It is reasonably clear that this section contemplated a proceeding by, and notice only to the parties to the action. It is but the sequel to the action of ejectment. It declares that upon the filing of the record of judgment, the court, upon the motion of the plaintiff, shall appoint commissioners to admeasure the dower ; and that their report may be appealed from by any party to the action.-

And. although the section declares that the commissioners shall have like powers and obligations and- proceed in like manner as commissioners appointed pursuant to the seventh title of the eighth chapter of the act (being the title before quoted), this does not, I think, mean that their appointment shall be procured upon a similar notice. The parties are in court who are to be affected by the assignment of dower. The statute requires the ejectment proceedings to be against the party in possession, but if he be a mere tenant, he is obliged by law to give notice of the action to his landlord, and is subjected to a heavy forfeiture if he do not.. (1 R. S., 748.) The landlord may be let in to defend. (2 R. S., 342.) He usually does so. He did so in this case, as is sworn to in the papers on the part of the defendant. The attorney in the suit, therefore, to whom notice is given is his attorney, and he lias had the opportunity to defend both the ejectment suit and the subsequent proceedings to admeasure dower.

It has also been held, or, at least, intimated, in a reported case in this court, that in these proceedings notice is not necessary to any one except the party to the action. (Ellicott v. Motier, 3 Seld., 206.)

But, although the Supreme Court set aside the report mainly upon this ground, it appears from the opinion of the court at General Term, that they affirmed the order of the Special Term in part, upon the ground that the report ivas wrong upon the merits, or in regard to the mode of admeasurement. They say: “We think, also, the commissioners erred, in assigning the dower so as to render the buildings almost useless to both parties.” We may conclude that the court at Special Term was influenced by like considerations They had the statutory right to set aside the report on this ground (2 E. S.,' 490, 491), and if we have the right to review that question on this appeal, I am of opinion that the power was judiciously exercised, and that the mode of assigning the dower was inequitable and injurious, and conld have been performed within the principle of the reported cases (White v. Story, 2 Hill, 544; Coates v. Cheever, 1 Cowen 463) in a much moré just and judicious manner. On that ground I am inclined to affirm the substance of the order.

If the order appealed from had been simply an affirmance of the order at Special Term, that would have been all which it would have been necessary to say. But the court, acting, doubtless, upon the idea that the proceedings were fatally defective unless notice was served upon the owners of the freehold, annexed this clause to the order of affirmance: “and that the proceedings be dismissed unless petitioner elects to amend within ten days from the entry of this order.” I think this clause was. erroneously inserted, and that so much of the order appealed from should be reversed-, and the residue affirmed.

As both parties are in fault, I think neither should recover costs against the other on this appeal.

All concur.

Affirmed.

JOEL TIFFANY, State-Reporter.  