
    Mary Ann Robinson, Pl’ff, v. Robert Govers, Individually and as Ex’r, et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 20, 1892.)
    
    1. Abatement and revivor—Death of party after verdict—Code Civ. Pro., § 763.
    Section 768 of the Code, providing for the entry of judgment where a party dies after verdict, does not apply to a case where the cause of action abates by the death of the plaintiff.
    2. Same—Dower.
    The verdict, report, decision or interlocutory judgment rdferred to in the section has reference to such verdict, etc., as determines the rights of the parties; and such section, therefore, has no application to an action for dower, where the plaintiff died after verdict that she was entitled to dower, but before confirmation of the report of the referee as to the amount thereof.
    Appeal from order granting leave to the plaintiff’s executor to continue the action, and amending and denying defendants’ motion to vacate a prior order in the same matter.
    
      Gratz Nathan, for app’lts ; J. B. Pine, for resp’t.
   Per Curiam.

The action was brought to recover dower in certain real estate of which Anthony Eobinson, 'the plaintiff's husband, died seized. Shortly after the commencement of the action the plaintiff filed in the county clerk’s office consents to accept sums in gross in satisfaction of her dower. By an answer interposed by one of the defendants, Robert C. Eobinson, an infant, submitting his rights to the protection of the court, all the facts alleged in the complaint were necessarily put in issue; and these, under the Code, had to be determined by the verdict of a jury. Code, § 968i The verdict was “that the plaintiff is entitled to dower in the premises described in the complaint.” Thereupon the plaintiff moved for an interlocutory judgment awarding dower in the property described, and directing a reference as to whether an admeasurement could be had, and, if not, for a sale of the premises. At the same time the defendants moved for an order that, in the event of the plaintiff being entitled to judgment, they should have leave to pay the plaintiff the gross sum to which she might be adjudged to be entitled. Upon the hearing of -this motion the court ordered a reference to ascertain the value of the plaintiff’s right of dower, and to report the respective amounts so ascertained by him.

Upon the report of the referee a motion was subsequently made to confirm the, same, and on the 18th of February, 1892, an order was entered denying defendants’ motion to dismiss the complaint, and confirming the referee’s report with certain modifications, and granting leave to defendants to pay the gross sum which the court found the plaintiff was entitled to receive. On the same day, and prior to the entry of this order, the plaintiff died, and a motion was thereupon made on behalf of the executor of plaintiff to continue the action in his name, and providing that the payments should be made to him-as such executor. The defendants made a motion to vacate the order of February 18, 1892, upon the ground that at the time said order was made the plaintiff had departed this life, and the action abated. The court denied the defendants’ motion to vacate ’the order of February 18th, and granted the plaintiff’s motion for a continuance ; the decision being placed upon the ground that under the provisions of § 763 of the Code the plaintiff’s rights were finally determined by the verdict of a jury; and it is from these orders that the present appeal is taken.

This presents a question as to the construction to be given to this section (763), which reads as follows: “If either party to an action dies after an accepted offer to allow judgment to be taken, or after a verdict, report, or decision, or an .interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the names of the original parties, unless the offer, verdict, report, or decision, or the interlocutory judgment, is set aside.” This section is to bé found under a title relating to“ proceedings upon the death .or disability of a party," and in its first section (755) is a provision that “ an action does not abate by any event if the cause'of action survives or continues.” By-subsequent sections under this title provision is made with respect to what proceedings were to be taken under certain circumstances upon the death of a party, all of which have reference to causes of action which survive after the death of the party. While, therefore, the effect of these sections is to permit the continuance of the action where the cause of action itself is not abated by the death of the party, they have no relation to an action such as this, where the cause of action itself abates by the death of the plaintiff. We are thus brought to the consideration of the true construction to be given to § 763. Having in mind the prior sections and § 764 (which latter has reference to an action for personal injury, and provides that the action does not abate by the death of a party), we are enabled to determine the true intent and meaning of § 763. From such examination we think it reasonably clear that this section will not support the order made continuing the action, and for two reasons: first, it does not apply to a case where the cause of action abates by the death of the plaintiff; and, second, even though it could be held to apply generally to any action, that in one such as this, to admeasure dower, a continuance Would not be authorized upon the death of the plaintiff before the entry of judgment. We think the first reason is supported, as shown, by a consideration of the preceding sections of the Code, and their relation to each other under a single title.

This view is enforced by § 764, which was undoubtedly intended to save from the general rule, by which an action abates if the cause of action abates, the case of an action to recover damages for personal injury. As has been well said by the appellant’s counsel, “ The language here is plain and explicit, and it is quite manifest that, if it had been the intention to make some provision in regard to actions in general, that intention would have been made equally plain and explicit. In fact, if the construction of § 763 contended for by the respondent were the true one, § 764 would have been entirely unnecessary, for the provisions of § 763 would have applied as well to an action to.recover damages for a personal injury as to all other actions.” The second finds support from a consideration of the nature of the action and the verdict rendered in the plaintiff’s favor. Even if § 763 has any application to actions generally, we think that the verdict, report, decision, or interlocutory judgment contemplated is one that determines the whole action, and in which nothing remains to carry the same into effect but the entry of final judgment thereon, and cannot be held to apply to a case like this, which relates to but a single issue involved in the case, and which is but the initiation of proceedings leading to a determination in the action of the rights of the parties. If we keep in mind what is determined by the verdict in an action for the admeasurement of dower and the subsequent proceedings, we think this is reasonably clear. The verdict determines that the plaintiff is entitled to dower, and the interlocutory judgment to be entered thereon can only direct that the plaintiff’s dower be admeasured by a referee or commissioners. Where, however, the plaintiff has filed a consent, and is entitled to an interlocutory judgment, the court, upon the application of either party, may ascertain whether a distinct parcel of the property can be admeasured and laid off to the plaintiff as tenant in dower, and, if such admeasurement cannot be made, a sale must be directed, and it is upon such sale being made and confirmed that the value of the plaintiff’s dower in the net proceeds is calculated and fixed. Practically, therefore, nothing is determined by the verdict except that the plaintiff is entitled to maintaip an action, the form of such verdict being that she is entitled to dower in the premises, which is to be determined and fixed, not only by the interlocutory judgment, but, by reason of the subsequent proceedings, by final judgment. We are of opinion, therefore, that the verdict, report, decision, or interlocutory judgment referred to in § 763 has reference to such verdict, etc., as determines the rights of the parties; and that the section will not apply to a verdict such as the one here, it not having reached a stage which determines .the rights of the parties. For these reasons we are of opinion that the order should be reversed, and that the defendants’ motion to set aside the order of February 18th, should be granted, with costs.

Van Brunt, P. J., and O’Brien, J., concur.  