Opinion
March 11, 1910.
Frederic J. Swift, for the appellant.
George V. Grainger, for the defendants, respondents.
William Mason Smith, for the respondent Buttenweiser.
Appeal from an order directing the receiver herein to pay over the excess of rents and profits collected from certain premises and to refrain from collecting further rents from such premises.
The appellant is the widow of John P. Conlon, who died seized and possessed of three pieces of improved real estate in the city of New York, to wit, Nos. 321 West Sixteenth street, 39 Mott street and 121 Worth street. He left a will in which he appointed one Michael J. Dwyer his executor with power of sale, but made no provision for his widow. She began this action for the admeasurement of her dower which resulted in a final judgment dated September 5, 1900, whereby it was held that plaintiff was entitled to dower in said real estate; that a distinct parcel of said real estate could not be admeasured and laid off without material injury to the interests of the parties, and that a physical division was impracticable. The decree thereupon declared the amount of the gross and net income derived from each of the parcels, and found that the net income from the Worth street property was $2,074.40 per annum, and the total net income from all the property was $4,514.44. It was, therefore, ordered that the executor should pay to plaintiff annually one-third of the total net income amounting to $1,504.81. It was provided that the amount to be paid might be increased or diminished by the court in case of any material change in the net annual income of the property.
On August 21, 1902, in consequence of the death of the executor and a dispute as to the ownership of the property a receiver was appointed of the property for the purpose of carrying into effect the judgment in the dower action. He was directed to lease the premises and collect the rents, and to pay the plaintiff the sum directed to be paid her annually in satisfaction of her dower.
In June, 1907, the executrix of the executor named in the will of John P. Conlon, deceased, acting under what was assumed to be the power of sale contained in the will of said Conlon, sold the Sixteenth street and Mott street properties, and on March 3, 1908, the receiver was discharged in so far as those properties were concerned, leaving the appellant to the remedies provided by the Code of Civil Procedure, or to such other remedies as might be available to secure her dower interest in those properties. The receiver, however, still continues in possession, under the order appointing him, of the Worth street property, and as to that property he still remains directed to pay appellant one-third of the net income. The objection to the payment to her rests upon the fact that she now claims to be the owner in fee of said Worth street property under a deed from her husband discovered since the final judgment in the dower action. It is said that it is inconsistent for her to claim dower in one breath and absolute ownership in the other. The inconsistency is obvious, but it affords no answer to the present motion, for in any event the appellant is entitled to as much of the income as she now asks to be paid. It is sufficient to say that the judgment in the dower action and the order appointing the receiver still stand unrevoked so far as concerns the Worth street property, and that under them the appellant is entitled to the payment for which she asks.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, said costs to be paid by the receiver out of the rents in his hands other than the sums directed to be paid to the appellant.
CLARKE, McLAUGHLIN, LAUGHLIN and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to be paid by receiver as stated in opinion.