Everson v. McMullen

Costs were properly awarded the plaintiff. Dower is “ an interest in real property ” whereof the widow is endowed, and although technically the interest is a chose in action or mere claim, and not an estate until admeasured, still the “ action for dower,” which is now-regulated by our Code of Civil Procedure, is an action to recover the interest in real estate, whether that interest be admeasured upon the land itself or its equivalent recovered in money. (4 Kent Com., 35; Payne v. Becker, 87 N. Y., 153; Code Civil Pro., §§ 1607-1613-1617, 1618.) The action for dower is triable by jury. (Id., § 968.) Hence plaintiff is entitled to costs “ of course.” (Sec. 3228, sub. 1.)

Our attention is called to Aikman v. Harsell (31 Hun, 635). That action was tried before the last nine chapters of the Code of Procedure took effect. It was there held that the costs were in the discretion of the court, the court holding that there were no statutory provisions in reference to the costs of the action. Without questioning the propriety of the ruling in that case, we think the Code now gives the plaintiff costs.

Judgment affirmed, with costs.

Judgment affirmed, with costs.