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Fourth Department, July, 1911.

[Vol. 146.

and decisions of other States relating to dower as it exists at the present time. The question must be determined by the laws of this State, as the real property is situated here.

By the decisions of the courts of this State, dower is recognized as a vested right arising out of the marriage. It is inchoate until the death of the husband, but the inchoate right vests at the time of the marriage in lands of which the husband is then seized, and in such as are thereafter acquired by him during coverture at the time he becomes seized thereof, of which right the wife can only be divested by her own voluntary act, or by forfeiture as the law provides. (Wait v. Wait, 4 N. Y. 95; Kursheedt v. Union Dime Savings Institution, 118 id. 358; Matter of Ensign, 37 Hun, 152; affd., 103 N. Y. 284; Van Cleaf v. Burns, 133 id. 540.) Judge HAIGHT, in the course of his opinion in the Ensign case, when the case was before the General Term of the Supreme Court, of which he was then a member, in commenting upon the decisions there referred to, says: "These decisions are placed upon the ground that the inchoate right of dower becomes a vested interest as soon as the husband is seized; and that, although the divorce may dissolve and terminate the marriage, it does not take away a vested interest in real estate previously acquired."

The point made by the appellants is, that the plaintiff cannot be a widow of the man who was not her husband at the time of his death, and, therefore, she is not entitled to dower. But that conclusion does not follow. As is said in Wait v. Wait (supra): "Whether or not a woman, divorced from her hus band, upon his subsequent death, is to be called his widow, may furnish a curious question in philology, but can not, I think, be decisive of the plaintiff's rights. It is true, the Legislature, in declaring what estates are liable to dower, speak of the party entitled to dower as a widow. Possibly the term may not, in every instance, be the most appropriate, yet, as descriptive of the person intended, it is clearly sufficiently so. All that the Legislature meant is, that when a woman is entitled to dower, she shall be endowed of a third part of all the lands whereof her husband was seized at any time during the marriage."

Furthermore, there is now and was at the time of the divorce,

App. Div.]

Fourth Department, July, 1911.

an express statutory declaration that if an action for divorce is brought by the wife and the marriage is dissolved, her inchoate right of dower in any real property of which the husband then is or was theretofore seized, is not affected by the judgment of divorce. (Laws of 1880, chap. 178; Code Civ. Proc. § 1759, subd. 4.) While the statute provides that in case of a divorce dissolving the marriage contract, for the misconduct of the wife, she shall not be endowed (R. S. pt. 2, chap. 1, tit. 3 [1 R. S. 741], § 8; Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], 176; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], 8 196), there is no provision in our statutes that if she obtains a divorce for the misconduct of her husband her dower shall be barred; but, as we have seen, there is an express declaration to the contrary. There are other ways in which the right of dower may be barred, forfeited or released, but they have no relation to the question here.

It is, however, further contended that section 1759 of the Code of Civil Procedure does not apply, because the marriage in our State may only be dissolved upon the ground of adultery, and a divorce obtained upon any other ground is, therefore, not within that provision. That is to say, if the judgment is obtained in this State upon the ground of adultery, the wife's right of dower is not affected thereby, but if obtained in another State upon other grounds, although sufficient by the laws of that State, for instance, such as desertion, she loses her right of dower whether she remarries or not. But the statutes referred to make no such distinction, and I think none exists in the law as declared by the courts of this State.

I am of the opinion that the demurrer was properly overruled, and that the interlocutory judgment entered thereon should be affirmed, with costs, with leave to plead over upon the usual terms.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to the defendants to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.

Fourth Department, July, 1911.

[Vol. 146.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS J. ACHESON, Relator, v. HENRY BULLARD and Others, Individually and as Members of the Town Board of the Town of Philadelphia, Jefferson County, N. Y., Respondents.

Fourth Department, July 11, 1911.

Town-compensation of supervisor - percentage on sum paid outcertiorari - return not controverting petition - when town board will be required to audit claim.

Under section 178 of the Town Law, as amended, the right of a supervisor to his statutory fees of one per centum on all moneys paid out by him as supervisor is as absolute as the right of a salaried official to his salary, the difference being that his compensation instead of being a fixed sum is uncertain.

The statements in a petition of a supervisor for a writ of certiorari directed to the town board, requiring them to certify and return their proceedings in refusing to allow his claims for percentages on moneys paid out must be taken to be true where they are not controverted in the return to the writ.

Thus, where he alleges that he had paid out certain sums, that fact must be deemed to be established where the return merely denies that the town is indebted to the relator in the amount set forth in the writ, or in any other amount, such reply in no sense denying the facts alleged in the petition.

A town board will be required to audit the claims of a supervisor for his statutory percentage on moneys paid out, where he alleges in his petition for a writ of certiorari that he has paid the amounts upon which percentages are claimed, where the return, while not specifically denying that the payments were made, merely alleges that the supervisor made fraudulent charges against the town, that he converted money to his own use, that he did not keep accurate and honest accounts, etc., and sets out specific instances of dereliction. This because, although such charges may furnish ground for removing the supervisor from office, or may be a basis for a civil or criminal action against him, he is entitled to his day in court. The town board has no power to pass upon his guilt or innocence, but must award him the emoluments legally affixed to his office.

MCLENNAN, P. J., dissented.

CERTIORARI issued out of the Supreme Court, and attested on the 4th day of February, 1911, directed to Henry Bullard and others, individually and as members of the town board of the town of Philadelphia, N. Y., directing them to certify and

App. Div.]

Fourth Department, July, 1911.

return to the office of the clerk of the county of Jefferson all and singular their proceedings had in refusing to allow certain claims of the relator against the town.

Purcell, Cullen & Purcell [Henry Purcell, Jr., of counsel], for the relator.

J. Frank La Rue [George W. Reeves of counsel], for the respondents.


The relator, Thomas J. Acheson, was the supervisor of the town of Philadelphia continuously from the year 1899 down to and including the 10th day of January, 1911, the date of presentation of his petition for the writ. In November, 1910, he presented to the town board for audit three verified claims for his fees for paying out and disbursing as such supervisor moneys of the town. One of these claims was for fees for receiving and disbursing the moneys in payment of the schedule of town accounts for the years 1905 to 1908, inclusive, in which the amount received and disbursed for each year was separately stated with the amount of fees claimed for each year, the aggregate of which was $50.81. Another was for fees for receiving and disbursing during the period from the year 1907 to and including March 23, 1910, the sum of $26,265.66, being the town hall fund. The amount of this claim was $262.65. The third claim was for fees for receiving and paying out the railroad fund belonging to said town, amounting to $2,100 for each of the years 1905 to 1908, inclusive. The amount of this claim as presented was $84. This latter claim it is conceded by the relator was erroneous and excessive in that the amount of this fund paid out by him in the year 1907 was $1,450 instead of $2,100. This error in the claim is set forth in his petition; and he therein states that this claim should have been allowed at $77.50 instead of $84, the amount claimed.

Relator's claim to these fees is made under subdivision 3 of section 178 of the Town Law (Gen. Laws, chap. 20 [Laws of 1890, chap. 569], as amd. by Laws of 1904, chap 546, and Laws of 1905, chap. 642). Prior to the amendment of this section in 1904, which added subdivision 3 thereto, a supervisor was not entitled

Fourth Department, July, 1911.

[Vol. 145. to any compensation for paying out town moneys, except the per diem allowance theretofore provided. (People ex rel. Keeffe v. Town Auditors, 24 App. Div. 579; affd., 156 N. Y. 689.) By this subdivision it is provided that a supervisor is entitled to be allowed and paid, in the same manner as other town charges are allowed and paid, a fee of one per centum on all moneys paid out by him as such supervisor, including moneys paid out for purposes particularly specified in the act, and excepting moneys expended under the Highway Law and moneys delivered to his successor in office. As these fees are to be allowed and paid in the same way as other town charges are allowed and paid, a claim for such fees must be presented to the auditing board and the claim audited. But the right of a supervisor to these fees is as absolute as the right of a salaried official to his salary. The difference is only that the compensation for services by salary would be "a fixed and certain sum, and that by fees uncertain." (MacVeany v. Mayor, etc., 80 N. Y. 185, 193; Nichols v. MacLean, 101 id. 526, 533.) As was said in People ex rel. Ryan v. Green (5 Daly, 254, 269): "The fees or salary of office are 'quicquid honorarium,' and accrue from mere possession of the office." If, therefore, the relator as supervisor properly paid out for the town the moneys set out in his various claims he became entitled to a fee of one per centum thereon, his right thereto accruing as an emolument of his office. In petition he alleges that he did actually pay out for the town the sums upon which his claims for fees are based, except in regard to the railroad fund to which I have already referred. Unless this statement in the petition be controverted in the return to the writ it must be taken as true. (People ex rel. Village of Brockport v. Sutphin, 166 N. Y. 163.) In their return respondents do "deny that the said Town of Philadelphia is indebted to the relator in the amounts set forth in said writ, or in any amount." This statement is in no sense a denial of the fact alleged in the petition that the relator had paid out for the town the several sums therein stated. Besides this, the only denial that relator has paid out for the town the sums he has alleged in the petition is the statement that in the town schedule account he has included as paid out by him for those years suns aggregating $52.50, which it is alleged he fraudu

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