
    Catharine Loretta Freeman, Respondent, v. Elizabeth G. Ahearn, Individually and as Executrix and Trustee under the Last Will and Testament of Michael C. Freeman, Deceased, and Others, Appellants; Maurice Freeman and Others, Respondents, Impleaded with Others.
    
      Admeasurement of dower — consent of the widow to accept a gross sum in lieu thereof —When it may he filed.
    
    In an action to procure an admeasurement of dower the failure of the widow to file her consent to accept a gross sum in lieu of dower before the interlocutory • judgment is rendered is cured by the filing of such a consent prior to the entry of the judgment confirming the referee’s report of sale, where it does not appear that the defendants have been prejudiced by the irregularity.
    Appeal by the defendants, Elizabeth G. Ahearn, individually and as executrix and trustee under the last will and testament of Michael C. Freeman, deceased, and others, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of July, 1900, with notice of intention to bring up for review upon said appeal a so-called, judgment theretofore entered in the action, and also an order entered in said clerk’s office on the 26th day of July, 1900, amending the said so-called judgment; also, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of May, 1900, denying said defendants’ motion to modify the interlocutory judgment herein; also from so much of an order made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of September, 1900, as directs a resale of the premises which are the subject of the action.
    
      
      Francis A. McCloskey, for the appellants.
    
      Edmund W. Wakelee, guardian ad litem, for the respondents Maurice Freeman, and others.
    
      John O. Judge, for the plaintiff, respondent.
   Per Curiam :

The plaintiff brought this action- to procure an admeasurement of dower in six houses and lots owned by her deceased husband. Section 1617 of the Code of Civil Procedure provides that in such an action the plaintiff may, at any time before an interlocutory judgment is rendered, where the defendants are in default, or at any time before the ‘commencement of the trial, where an issue of fact is joined, file a consent to accept a gross sum in full satisfaction and discharge of her right of dower in'the real property described in. the complaint.. Ho such consent was filed in this case until after the interlocutory judgment had been rendered. The plaintiff did file such a consent, however, prior to the entry of the judgment, confirming the referee’s report of sale. From this judgment the defendants Elizabeth Gr. Ahearn and Fannie L. Freeman have appealed by a notice in which they state their intention of bringing up for review the preliminary order of sale and also an order amending the final judgment. In "the brief in behalf of the appellants the determination of this appeal is said to depend upon the broad question of law: “ Has the Supreme Court power, in an action for dower, to sell the fee of the lands in which dower is claimed, unless the plaintiff first files and serves a consent to accept a gross sum in lieu of dower, as required by section 1617 of the Civil Code % ” ■

Under the circumstances presented in this case w 3 think that the filing of the consent prescribed by section 1617 of the Code of Civil Procedure, before the entry of the judgment confirming the sale, sufficed to cure whatever irregularity there may have been in the proceedings before: that was done. The language of the Code is “ may,” not must.” In such an action it is the widow who is chiefly concerned with the question whether she will accept a gross sum in-lie'u of dower or not. We cannot see how it makes any difference to the defendants in this case whether that consent was filed before or after the rendition of the interlocutory judgment, so long as the widow avowed her willingness to accept money instead of the land before the property was actually sold. It is said in the brief of the learned counsel for the appellants that they have been deprived of their property without due process of law, because they have not been allowed to redeem by paying the dower in gross, as provided for in section 1618 of the Code of Civil Procedure. They do not appear, however, to have made any application to this end. If they had deemed this deprivation a denial of a substantial right, they could have applied to the court to set aside the interlocutory judgment and all proceedings subsequent thereto, and for an order granting them leave to pay such gross sum, if they had so desired. No application of this kind appears in the record. It is true- that the defendants did ask for a modification of the judgment, but in an entirely different respect. They desired to strike out the direction to sell and to substitute in lien thereof a direction that a sum equal to oné-third the rental value of the property be paid to the plaintiff annually during her life.

We find no defect or irregularity in the proceedings which would warrant any interference with the judgment,, and conclude that it must be affirmed, with costs.

Present Goodrich, P, J., Woodward, Hirschberg, Jenks and Sewell, JJ.

Judgment and orders affirmed, with costs.  