
    Eliza Moore v. The Mayor, Aldermen and Commonalty of the City of New York.
    Where a municipal corporation ia authorized by an act of the legislature to take lands for the public use, making compensation in the manner prescribed by the act, to the respective owners and persons entitled to or interested in the same, upon which being done, the corporation was to become seized in fee-simple absolute of the lands so taken; and in proceeding under the act, compensation for a portion of the lands whereof L. M. was seized in fee, was awarded and paid to him, without any notice being taken of the inchoate right of dower of his wife E. M. therein, or award made to her therefor; it was held, that her interest, for the purpose of compensation under the act, was not to be considered as distinct from that of her husband, so as to require a separate estimation, and that he was for that purpose to be deemed the entire owner of the estate; and hence she was not entitled to dower therein after the death of her husband.
    Thq wife’s right of dower being an incident to the marriage relation, is merely inchoate during the lifetime of the husbandduring which she has no vested or certain interest in his lands. Before it vests by his death, any regulation of it may be made by the legislature, though its operation is in effect to divest her right of dower.
    The case of Lamence v. Miller, 1 Sand. S. O. R. 516, and 2 Comstock, 245, commented upon, and the foregoing principle sustained.
    The power of the state to take private property for public uses, results from its right of eminent domain, which is only restricted by the constitutional provision that just compensation shall be made to the owner. In cases of this character, the husband is justly considered the entire owner, and the award is properly made to him. And on payment to him of the full value of the property, the title vests in the public, discharged from any claim of dower on the part of the wife.
    (Before Oakley, Ch. J., and Sandford and Paine, J. J.)
    Feb. 12;
    March 15, 1851
    This was an action commenced by tbe plaintiff, as tbe widow of Lewis Moore, to recover dower in certain premises in tbe city of New York occupied by tbe defendants.
    Tbe lands were taken by tbe corporation of tbe city of New York under an act passed March 14,1817, (Laws of 1817, cb. 75, page 63,) by which _ it was enacted that in order to obtain tbe lands required for tbe public use, (described in the abt,) tbe supreme court was to appoint commissioners of estimate and assessment, who were on oath to make a just and true estimate of the loss and damage to the respective owners, lessees, parties, and persons, respectively, entitled, unto or interested in the lands, tenements, hereditaments, or in the privileges or appurtenances to the same belonging, which were so required for the public use. The report of the commissioners was to be confirmed by the court, and when confirmed, was to be final and conclusive, as well upon the corporation as upon the owners, lessees, and persons and parties' interested in and entitled unto the lands, &c., so required, and the corporation should thereupon become seized in fee-simple absolute of such lands, &c. The sums awarded for loss and damage were to be paid by the corporation to those in whose favor such awards were made by the commissioners. Under this act, the commissioners reported that Lewis Moore was seized in fee of the premises in question, and they awarded to him, for his loss and damage, by reason of their being taken by the corporation, $29,420. The report was confirmed, and this sum was paid to Lewis Moore. Some other facts appear in the opinion of the court. The cause was tried before one of the justices at special term, on the 22d of October, 1850, a jury being waived by the parties. Upon the trial, judgment was rendered for the plaintiff, from which the defendants appealed to the general term.
    
      A. J. Willard and II. D. Davies, for the defendants.
    I. The act of March 14th, 1817, conferred full and ample authority upon the defendants, on complying with its provisions, to become vested and seized in fee-simple absolute of the lands of Lewis Moore, mentioned in the complaint.
    The proceedings taken to divest the title of Lewis Moore to the lands, and to vest the same in fee in the corporation, were in strict conformity with the statutes; Lewis Moore appeared before the commissioners and the supreme court, and was heard in the premises; the judgment of the supreme court was given in confirmation of the proceedings; the sum awarded as the value of the fee-simple of the lands was paid to Lewis Moore, and the sum was accepted by him, in the year 1821; and the corporation entered thereafter, in the same year, into possession of the lands, as seized thereof in fee-simple; and have, by themselves or their grantees, continued in such possession; claiming to be absolute owners in fee, until the filing of the complaint in this suit. The title of the corporation, at all times from the payment of the award, was that of a good and indefeasible estate in fee-simple; liable in no'respect to any claims of Lewis •Moore, or of any other person.
    II., The act of the' legislature, under which the lands were taken and vested in fee in the corporation, was constitutional and valid. (2 Kent’s Comm. 339, note c. 6th ed.; 4 Ibid. 49; 3 Paige, 73, and 5 Ibid. 160, per Chancellor; 1 Hamm. R., Ohio, 538; 3 Edw. Ch. R. 47; Park on Dower, 246, note.)
    HI. Lewis Moore, and all persons claiming under or through him, are estopped from impugning or questioning the title of the corporation. (See Smith’s Leading Cases, Law Library, vol, 28, p. 45.)
    IY. The proceedings set forth in the pleadings, for transferring the lands in question to the corporation in fee, had, in pursuance of the statutes referred to and resulting in the confirmation by the judgment of the supreme court, in 1821, form a final decision of the matters acted on.
    Y. .The amount awarded was for the lands taken, and is to be regarded as a substitute therefor; and the plaintiff, if entitled to dower out of the said lands, is to obtain it from such substitute.
    
      J. M. Mason and J. M. Knox, for the plaintiff.
    I. The respondent, Eliza Moore, is entitled to dower in the real property whereof her husband was seized during coverture of an estate of inheritance. (4 Kent’s Com. 35, 41; 2 R. S. 26, § 1, 3d ed.; 2 Black. Com. 132.)
    II. A widow’s title has relation to the time of the marriage, and to the seizin which her husband then had. Her estate is a continuation of the husband’s, commencing at the time of the purchase, if the lands were acquired after marriage. (Lawrence v. Miller, 2 Comstock, 255, per Gardiner, J., who cites Cruise Dig., Title Dower, Tit. VI., ch. 2, §§ 34, 17.)
    III. By marriage and seizin, the right of dower is a vested right, and cannot be defeated by subsequent legislation. (Kelly v. Harrison, 2 John. Ca. 29; Jackson v. Edwards, 22 Wend. 498; Lawrence v. Miller, 2 Comstock, 245, per Shankland, J., at p. 253.)
    IV. The appellants claim under an act of the legislature of 14th March, 1817, authorizing the taking of the premises in which the respondent had an inchoate right of dower, for public purposes; but private property cannot be taken for public use, without just compensation. (U. S. Const., Amendment 5, (1789,) adopted in N. Y. Const. 1821, art. 7, § 7.) And this is declaratory of a great and fundamental-principle of government, and any law violating that principle must be deemed a nullity, as it is against natural right and justice. (Spencer, Oh. J., in Bradshaw v. Rogers, 20 Johns. 106.) And provision for the compensation must be made when the taking is authorized. (Walworth, Ch., in Bloodgood v. Mohawk and H. R. R. Co., 18 Wend. 8.)
    V. There is no provision for the compensation to the respondent for her right of dower, made by the commissioners’ report; and the proceedings under the act of 1817, have not, therefore, divested her rights either to an assignment of dower, or to a compensation for that dower. Other special interests are noticed and provided for in the- report, as mortgages, liens, &c. The money might have been paid into court, for her dower, or if her exact rights were unknown. The city never has paid for the right of Mrs. Moore. The corporation has what they have paid for, i. e., the right of Lewis Moore.
    VI. It is admitted that the respondent did not unite with her husband in any receipt to the defendants, for the amounts awarded to him, or any part thereof. And that she demanded her dower in the said premises, of the defendants, in July, 1843, and that the same was refused. If not strictly entitled to dower in these premises, she is entitled to compensation for her interest in tbe property taken by tbe appellants under tbe act of 1817. And the amounts awarded to her husband, are the proper measure of damages; the appellants being in the same situation as a grantee of the husband alone would have been. (Hale v. James, 6 J. C. R. 258.)
   By the Court.

Oakley, Ch. J.

This is an action brought by the plaintiff, as the widow of Lewis Moore, deceased, to recover her dower in certain premises in the city of New York, of which her husband was seized in his lifetime. The land in question is a portion of the ground now occupied by the Eulton market.

An act was passed by the legislature of this state on the 14th March, 1817, authorizing The Mayor, Aldermen and Commonalty of the city of New York, to take possession of certain lands in that city, among which were the premises in question, for the purpose of a public market. Under this law, commissioners of estimate and assessment were appointed by the supreme court. These commissioners proceeded in the performance of their duties, and estimated the amounts due to the several owners of the lands. Their report was submitted to the court and duly confirmed. The amount awarded to Lewis Moore, the husband of the plaintiff, as the entire value of the land belonging to him which was required for the market, was paid to him. The law provided that upon the confirmation of the report, the land included in it should vest in the corporation of the city, in fee-simple absolute. No objection is made to the regularity of the proceedings on the part of the commissioners; nor is any question made as to their effect on the interest of the husband. .

The plaintiff now claims that she is entitled to her dower in that portion of the premises so taken, which were owned by her husband; no provision having been made in the report of the commissioners for compensation to her, although she was at that time the wife of Lewis Moore.-

The question which is here presented is, whether a wife has such an interest in the premises owned by her husband, while her right of dower is inchoate, as cannot be divested by this act of the legislature and the proceedings under it. Reference has been made, on the part of the respondents, to the case of Lawrence v. Miller, (1 Sand. S. C. Rep. 516,) which.came originally before this court, and in which the court of appeals subsequently reversed our decision. The reversal did not affect the principles which governed us in that case, so far as they are applicable to the present. We then held that the wife’s right of dower was merely inchoate during the life of the husband, and that she had no vested or certain interest in his lands. • The right being merely an incident to the marriage relation, it seems to us that while this Tight is thus inchoate, and before it has become vested by the death of the husband, any regulation of it may be made by the legislature, though its operation is in effect to divest the right; the marriage relation itself being within the power of the legislature to modify, or even abolish it.

The power of the state, to take private property for public uses, results from its right of eminent domain, and that power is not restricted except by the constitutional provision, that just compensation shall be made to the owner. In this case, the husband was deemed to be the owner of the entire estate in the land, and the inchoate right of the wife was not considered by the commissioners, and we think justly so, as an interest distinct from that of her husband, as the subject of' estimate as to its value, separate from his. Indeed, the value of her interest,. such as it was, would seem to be scarcely capable of being estimated as a separate interest. We see no reason to doubt, that the commissioners were right in considering the entire estate in these lands as vested in the husband, and that he having been paid the full value of them, the corporation, by force of the act, became seized of the lands in fee-simple absolute, discharged of any claim of dower of the wife therein.

Judgment of the special term reversed.  