
    Cora F. Green, Plaintiff, v. George A. Lampman and Others, Defendants.
    (Supreme Court, Greene Trial Term,
    June, 1916.)
    Partition— complaint in — interest of widow of intestate — dower — Code Civ. Pro. § 1533.
    Where the only interest of the widow of an intestate, in premises of which he died seized, arises from her right of dower which has neither been admeasured nor assigned, and it appears that, without great prejudice to the owner, there can be no partition of the property, which since the death of the intestate has been occupied by his widow, she is entitled under section 1533 of the Code of Civil Procedure to have the complaint in an action brought for partition by a tenant in common of a vested remainder in the property dismissed, but without costs.
    Action for partition.
    J. L. Patrie, for plaintiff.
    D. H. Daley, for defendant, Ida M. Crusan.
   Chester, J.

The action is brought for the partition of certain lands of which George B. Lampman died seized and possessed. He died intestate in March, 1905, leaving the plaintiff and a brother and sister of hers as the only heirs at law of such deceased and also leaving Ida M. Crusan, his widow, who since his death has remarried the defendant John H. Crusan. The widow moves for a dismissal of the complaint, with costs, under section 1533 of the Code of Civil Procedure, she having refused to give her consent to a sale of the premises. The premises consist of a single family dwelling house, about twelve and a half acres of land, a small barn and a wagon shed and a small carpenter shop, now used for a chicken house. Since the death of her husband Mr. Lampman, she has been occupying the entire premises. Her only interest in the premises arises from her right of dower, and that so far as appears has not been admeasured or assigned. The testimony shows that there can be no partition of the property without great prejudice to the owners. The case seems to be therefore within the language of the section of the Code of Civil Procedure referred to which provides that in such a case the complaint should be dismissed. I think, however, that it should not be dismissed with costs against the plaintiff for the reason that the widow insisted upon the trial and in her answer that she had the right to the possession of the whole of the premises during her entire life and the proof shows that she has occupied the same and the whole thereof ever since the death of her husband. A widow is endowed under the law with a third part only of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage. Beal Prop. Law, § 190; Laws of 1909, chap. 52. She having occupied the entire property since her husband’s death, and long after the widow’s quarantine has expired, I think she is hardly equitably entitled to a bill of costs.

More than this the plaintiff as a tenant in common of a vested remainder in this property had the right under such section 1533 to commence the action, subject to the interest of the widow as the holder of the particular estate therein and subject to her right to object to a sale. Under such circumstances the plaintiff should not be charged with costs.

Complaint dismissed, without costs.  