
    Cora Woodbury, Respondent, v. Sarah T. Woodbury, Appellant, Impleaded with Ernestine Dillon Feig and Alfred Brown, Defendants.
    Second Department,
    May 26, 1911.
    Dower — damages for withholding dower — rental for full value prevented by widow’s action — gross sum, how computed—when costs should be deducted.
    In an action for dower a widow should not be awarded a third of the net rental value as established by expert testimony as damages for withholding dower, where the summons against a non-resident incompetent was issued within two days of the husband’s death, and the plaintiff, by refusing to agree to any lease which would interfere with the enforcement of her rights, and by lis pendens filed made rental for the full value impossible. Under such circumstances, the damages should be reduced to one-third of the net rentals existing at the time of the husband’s death, with interest.
    Where a physical admeasurement is not possible and lands are sold, the gross sum payable to the widow should be computed upon the net proceeds of the sale, after deducting the costs allowed in the action, if it appears that the attorneys consented to an allowance of full statutory costs,- so that there is no presumption that the court intended to charge . the same against any particular interest.
    Appeal by the defendant, Sarah T. Woodbury, from a judgment of the Suprepie Court in -favor of the plaintiff, entered in the office of the- clerk of the county of Kings on the 29th clay of June, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk’s office on the 18th day of June, 1910, fixing the costs and granting an extra allowance.
    
      George S. Billings, for the appellant.
    
      Benjamin Patterson, for the respondent.
   Thomas, J.:

Woodbury died intestate January 18, 1909, leaving hissister, Sarah T. Woodbury, an incompetent, as his only heir-at-law, and a widow, the plaintiff, who began this action to recover her dower, by summons dated January 20, 1909, served on the heir without the State on April 6, 1909. By order the summons and complaint were on the following March twenty-fifth served on the appellant’s attorney who, having been appointed special guardian ad litem for the incompetent, served an answer submitting her rights to the court. As actual admeasurement of dower could not be had, as all parties advised the court, the land was ordered to be. sold and such provision made for reparceling the same as was deemed most advantageous. What the land was, the relation of the pieces and the readjustment may be learned from the opinion of the referee. The plaintiff’s dower was computed upon the proceeds of sale, less the referee’s fees and expenses, without deduction of the costs and disbursements allowed the parties or either of them. The plaintiff recovered as damages for withholding her dower §3,065.45, which was one-third of the net rental value, as found by the referee upon the evidence of an expert.. To the judgment in such respects the appellant objects. The damages were not justly awarded. The husband, had been dead some two days when the summons was dated, and it was only on February 5, 1909, that the Us pendens was filed. The plaintiff’s consent to accept a gross sum was dated March 9, 1909, and another consent, dated June Y, 1909, was filed, wherfein was a statement that plaintiff would accept a distinct lot in lieu of dower in parcels 3 and 4, and a gross sum for her remaining interest. An order of reference was made in June, the referee’s report is dated in November, 190.9, the interlocutory judgment was rendered in December, and a sale actually had in April, 1910. The gross rents received by defendant’s committee were $2,300. The taxes paid were $1,590.28, and the outlay for repairs was $150. For such expenses, aggregating $1,140.28, an allowance was made. Pursuant to such receipts and expenditures the plaintiff was entitled to recover one-third of $559.12, with interest. But the allowance for damages, as already stated, was based on such annual rental value as the expert ascribed to the several pieces of land. Assuming that there was a withholding of dower (although there is no evidence of it), it is apparent that if the rental value stated by the expert could have been obtained under ordinary circumstances, the plaintiff by her action destroyed it for the oncoming season. The property, distributed into six parcels, is situated at Coney Island. Two parcels, No. 2 and part of No. 5, were under lease for terms extending beyond the time of sale, and yet the referee ignored the reserved rental and, at least as to parcel No. 2, fixed the incompetent’s liability for withholding it at $3,000, although her husband’p lease returned but $2,000 rental. The other parcels were vacant and unimproved, save that there were some bathhouses on some part of parcel No. 4, while on parcel No. 1 there was a two-story structure and also a café or hotel. But the conditions did not permit the property to be rented at its usual fair value because any lease was menaced by a probable sale in the action, and the Us pendens constantly proclaimed that a change in ownership was approaching as rapidly as the prescribed remedy could be enforced. The gross injustice of charging the incompetent with damages for withholding this property is manifest in the evidence 'of plaintiff’s attorney, whereby it appears that there was danger that any person accepting a lease would be harmed - thereby, and also that he, as representing the plaintiff, refused to countenance a lease that should interfere with the enforcement of the plaintiff’s rights. It is not a question now whether the incompetent’s- committee did or did not use all requisite activity in an attempted renting of the bathhouses and café, the latter of which was unfinished, at the intestate’s death, and required very considerable outlay, for the referee has not rested his decision upon such consideration. Moreover, it is considered that the defendant did not in a legal sense withhold the property from the plaintiff. The whole conduct of the parties shows that there could be no actual admeasurement, and presumably before the husband was buried or the incompetent’s committee advised of the situation, the plaintiff by her action clogged' and burdened the property, and thereupon asked the court to condemn the defendant in damages because she had not admeasured her dower to the plaintiff before the action was begun, or extricated herself from the embarrassment imposed by the plaintiff and rented the property at the sum placed upon it by the expert at the time of the trial. The defendant also contends that the gross sum should be computed upon the net proceeds of sale; that is, that the costs allowed to the plaintiff and to himself should first be deducted. The allowances are very large and could have been granted only upon the theory that the action is governed by the rules applicable to actions for partition. (Code Civ. Proc. §§ 1625, 3253, 3254; Schierloh v. Schierloh, 14 Hun, 572.) But if this action is analogous to an action in partition, the, costs should be paid out of the gross proceeds of sale, unless it should be considered that the court intended in its discretion to charge the same against particular interests. It is presumable that the attorneys consented to the allowances that reached the full statutory limit, and in such case the exercise of the discretion of the court is not also presumed. , ■

Under such circumstances the judgment should be modified by computing the gross sum payable for dower upon the net proceeds of sale, pursuant to section 1624 of the Code of Civil Procedure, which would involve the deduction of the costs and allowances to the parties; in addition, the damages should be reduced to one-third of the net rentals, with interest, and as so modified the judgment should be affirmed, without costs.

Jenks, P. J., Hirschberg, Burr and Carr, JJ., concurred.

Judgment modified in accordance with opinion, and as so modified affirmed, without costs. Settle order before Thomas, J.  