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NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
(RPAPL)
ARTICLE 10
ACTION FOR DOWER
Section 1001. Limitation of action for dower.
1002. Action barred by assignment of dower.
1011. Necessary defendants.
1012. Who may be joined as defendants.
1013. Actions where defendants claim in severalty.
1021. Damages may be recovered; how estimated.
1022. Damages in action against alienee of husband.
1023. Damages where several parcels are affected.
1024. Damages apportioned between heir and alienee.
1025. Damages against grantee of premises
subject to dower.
1031. Complaint.
1041. Interlocutory judgment for admeasurement.
1043. Dower, how admeasured.
1044. Report thereupon.
1045. Setting aside report.
1051. Fees and expenses.
1052. Fees of surveyor or commissioner in
action for dower.
1061. Final judgment.
1062. Plaintiff may recover sum awarded;
court may modify judgment.
1063. Junior incumbrances; not affected
by admeasurement.
1064. Appeal not to stay execution if
undertaking is given.
1071. Plaintiff may consent to receive a gross sum.
1072. Defendant may consent to pay it;
proceedings thereupon.
1073. Interlocutory judgment for sale.
1074. Direction that a part be laid off.
1075. Liens to be ascertained.
1076. Satisfaction or protection of lien.
1077. Payment of taxes, assessments and
water rates out of proceeds.
1078. Report of sale.
1079. Final judgment upon confirming sale.
1081. Certain provisions made applicable.
1091. Action to recover property by
reversioner or remainderman, after
determination of particular estate.
1093. Collusive recovery not to prejudice infant.
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Sec. 1001. LIMITATION OF ACTION FOR DOWER.
1. An action for dower must be commenced by a widow within two
years after the death of her husband, if the husband dies on
or after April 6, 1954.
2. If the husband died before April 6, 1954, an action for
dower must be commenced by his widow within two years from
April 6, 1954. If the widow had, on April 6, 1954, less than
two years under existing law in which to bring an action for
dower, the time so remaining is not enlarged by this
section. Nothing herein contained shall revive a cause of
action barred on April 6, 1954.
Sec. 1002. ACTION BARRED BY ASSIGNMENT OF DOWER.
The acceptance by a widow of an assignment of dower in
satisfaction of her claim upon the property in question bars an
action for dower and may be pleaded by any defendant.
Sec. 1011. NECESSARY DEFENDANTS.
Where the property in which dower is claimed is actually
occupied, the occupant thereof must be made defendant in the
action. Where it is not so occupied, the action must be brought
against some person exercising acts of ownership thereupon, or
claiming title thereto, or an interest therein, at the time of
the commencement of the action.
Sec. 1012. WHO MAY BE JOINED AS DEFENDANTS.
1. In either of the cases specified in section 1011, any other
person claiming title to, or the right to the possession of,
the real property in which dower is claimed may be joined as
defendant in the action.
2. The people of the state of New York may be made a party
defendant in an action for dower where the people of the
state of New York have an interest in or a lien upon the
lands affected thereby, in the same manner as a private
person. In such a case the summons must be served upon the
attorney-general, who must appear in behalf of the people.
But where the people of the state of New York are made a
party defendant, as herein provided, the complaint shall set
forth, in addition to the other matters required, detailed
facts showing the particular nature of the interest in or
the lien on the said real property of the people of the
state of New York and the reason for making the people a
party defendant. Upon failure to state such facts the
complaint shall be dismissed as to the people of the state
of New York.
Sec. 1013. ACTIONS WHERE DEFENDANTS CLAIM IN SEVERALTY.
In an action to recover dower, in a distinct parcel of real
property of which the plaintiff's husband died seized, or in all
the real property which he aliened by one conveyance, all the
persons in possession of, or claiming title to, the property, or
any part thereof, may be made defendants, although they possess
or claim title to different portions thereof in severalty.
Sec. 1021. DAMAGES MAY BE RECOVERED; HOW ESTIMATED.
Where a widow recovers, in an action therefor, dower in property,
of which her husband died seized, she may also recover, in the
same action, damages for withholding her dower, to the amount of
one-third of the annual value of the mense profits of the
property, with interest; to be computed, where the action is
against the heir, from her husband's death, or, where it is
against any other person, from the time when she demanded her
dower of the defendant; and in each case, to the time of the
trial, or application for judgment, as the case may be; but not
exceeding six years in the whole. The damages shall not include
any thing for the use of permanent improvements, made after the
death of the husband.
Sec. 1022. DAMAGES IN ACTION AGAINST ALIENEE OF HUSBAND.
Where a widow recovers dower, in a case not specified in section
1021, she may also recover, in the same action, damages for
withholding her dower, to be computed from the commencement of
the action; but they shall not include any thing for the use of
permanent improvements, made since the property was aliened by
her husband. In all other respects, the same must be computed as
prescribed in section 1021.
Sec. 1023. DAMAGES WHERE SEVERAL PARCELS ARE AFFECTED.
Sections 1021 and 1022 do not authorize the recovery, against a
defendant who is joined with others, of damages for withholding
dower, in any portion of the property not occupied or claimed by
him.
Sec. 1024. DAMAGES APPORTIONED BETWEEN HEIR AND ALIENEE.
Where a widow recovers dower in real property aliened by the heir
of her husband, she may recover, in a separate action against
him, her damages for withholding her dower, from the time of the
death of her husband to the time of the alienation, not exceeding
six years in the whole. The sum recovered from him must be
deducted from the sum which she would otherwise be entitled to
recover from the grantee; and any sum recovered as damages from
the grantee, must be deducted from the sum, which she would
otherwise be entitled to recover from the heir.
Sec. 1025. DAMAGES AGAINST GRANTEE OF PREMISES SUBJECT TO
DOWER.
If the defendant, in an action for dower, aliens the real
property in question after the filing of a notice of pendency of
action and an execution against him for the plaintiff's damages
is returned wholly or partly unsatisfied, an action may be
maintained by the plaintiff against any person who has been in
possession of the property under the defendant's conveyance, to
recover the unsatisfied portion of the damages, for a time not
exceeding that during which he possessed the property.
Sec. 1031. COMPLAINT.
The complaint in an action for dower must describe the property
claimed with common certainty, by setting forth the name of the
township or tract and the number of the lot, if there is any, or
in some other appropriate manner, so that from the description,
possession of the property claimed may be delivered where the
plaintiff is entitled thereto, and must set forth the name of the
plaintiff's husband.
Sec. 1041. INTERLOCUTORY JUDGMENT FOR ADMEASUREMENT.
If the defendant makes default in appearing or pleading or if the
right of the plaintiff to dower is not disputed by the answer, or
if it appears, by the verdict, report, or decision upon a trial,
that the plaintiff is entitled to dower in the real property
described in the complaint an interlocutory judgment must be
rendered which, except as otherwise prescribed in this article,
must direct that the plaintiff's dower in the property,
particularly describing it, be admeasured by a referee,
designated in the judgment, or by three reputable and
disinterested freeholders, designated therein, as commissioners
for that purpose.
Sec. 1043. DOWER, HOW ADMEASURED.
The referee or the commissioners must execute their duties in the
following manner:
1. They must, if it is practicable, and, in their opinion, for
the best interests of all the parties concerned, admeasure
and lay off, as speedily as possible, as the dower of the
plaintiff, a distinct parcel, constituting the one-third
part of the real property of which dower is to be
admeasured, designating the part so laid off by posts,
stones, or other permanent monuments.
2. In making the admeasurement, they must take into
consideration any permanent improvements, made upon the real
property, after the death of the plaintiff's husband, or
after the alienation thereof by him; and, if practicable,
those improvements must be awarded within the part not laid
off to the plaintiff; or, if it is not practicable so to
award them, a deduction must be made from the part laid off
to the plaintiff, proportionate to the benefit which she
will derive from so much of those improvements, as is
included in the part laid off to her.
3. If it is not practicable, or if, in the opinion of the
referee or commissioners, it is not for the best interests
of all the parties concerned, to admeasure and lay off to
the plaintiff a distinct parcel of the property, as
prescribed in the foregoing subdivisions of this section,
they must report that fact to the court.
4. They may employ a surveyor, with the necessary assistants,
to aid in the admeasurement.
Sec. 1044. REPORT THEREUPON.
All the commissioners must meet together in the performance of
any of their duties; but the acts of a majority so met are valid.
The referee, or the commissioners, or a majority of them, must
make a full report of their proceedings, specifying therein the
manner in which they have discharged their trust, with the items
of their charges, and a particular description of the portion
admeasured and laid off to the plaintiff; or, if they report that
it is not practicable, or, in their opinion, it is not for the
best interests of all the parties concerned, to admeasure and lay
off a distinct parcel of the property of which dower is to be
admeasured, they must state the reasons for that opinion and all
the facts relating thereto. The report must be acknowledged or
proved, and certified, in like manner as a deed to be recorded,
and must be filed in the office of the clerk.
Sec. 1045. SETTING ASIDE REPORT.
Upon the application of any party to the action, and upon good
cause shown, the court may set aside the report, and, if
necessary, may appoint new commissioners, or a new referee, who
must proceed, as prescribed in this article, with respect to
those first appointed.
Sec. 1051. FEES AND EXPENSES.
The fees and expenses of the commissioners, or of the referee,
including the expense of a survey, when it is made, must be taxed
under the direction of the court; and the amount thereof must be
paid by the plaintiff, and allowed to her, upon the taxation of
her costs.
Sec. 1052. FEES OF SURVEYOR OR COMMISSIONER IN ACTION FOR
DOWER.
A surveyor, employed as prescribed by law, in an action for
dower, or to determine dower, is entitled to five dollars for
each day actually and necessarily occupied in surveying, laying
out, marking, or mapping land therein. Each assistant so
employed is entitled to two dollars for each day actually and
necessarily occupied in serving under the surveyor's direction.
Each commissioner appointed as prescribed by law to admeasure
dower is entitled to five dollars for each day's actual and
necessary service.
Sec. 1061. FINAL JUDGMENT.
Upon the report being confirmed by the court, final judgment must
be rendered. If the referee or commissioners have admeasured and
laid off to the plaintiff a distinct parcel of the property, the
judgment must award to her, during her natural life, the
possession of that parcel, describing it, subject to the payment
of all taxes, assessments, and other charges, accruing thereupon
after she takes possession. If the referee or the commissioners
report, that is not practicable, or that, in his or their
opinion, it is not for the best interests of all the parties
concerned, so to admeasure and lay off a distinct parcel of the
property, the final judgment must direct, that a sum, fixed by
the court, and specified therein, equal to one-third of the
rental value of the real property, as ascertained by a reference
or otherwise, be paid to the plaintiff, annually or oftener, as
directed in the judgment, during her natural life, for her dower
in the property; and that the sum so to be paid, be and remain a
charge upon the property, during her natural life. The final
judgment may also award damages for the withholding of dower.
Sec. 1062. PLAINTIFF MAY RECOVER SUM AWARDED; COURT MAY
MODIFY JUDGMENT.
The plaintiff may, from time to time, maintain an action against
the owner, or a person who was the owner of the property, to
recover any installment of the sum, so awarded to her for her
dower, which became due during his ownership, and remains unpaid.
Or, if an installment remains due and unpaid, she may maintain an
action to procure a sale of the property, and enforce the payment
of the installments, due and to become due, out of the proceeds
of the sale. Such an action must be conducted as if the charge
upon the real property was a mortgage to the same effect. If, at
any time, it is made to appear to the court that the rental value
of the real property has materially increased or diminished, the
court may, by an order, to be made upon notice to all the persons
interested, modify the final judgment by increasing or
diminishing the sum to be paid to the plaintiff.
Sec. 1063. JUNIOR INCUMBRANCES; NOT AFFECTED BY
ADMEASUREMENT.
Where a portion of the property is admeasured and laid off to the
plaintiff as her dower, a lien which is inferior to the
plaintiff's right of dower attaches, during the life of the
plaintiff, to the residue, or to the portion or share of the
residue which was subject to it, as if the portion laid off to
the plaintiff had not been a part of the property.
Sec. 1064. APPEAL NOT TO STAY EXECUTION IF UNDERTAKING IS
GIVEN.
An appeal from a final judgment awarding to the plaintiff
possession of the part admeasured and laid off to her does not
stay the execution thereof unless the court, or a judge thereof,
grants an order directing such a stay. Such an order shall not be
granted if an undertaking is given on the part of the respondent,
with one or more sureties approved by the court, or a judge
thereof, to the effect that, if the judgment appealed from is
reversed or modified, and restitution is awarded, she will pay to
the person entitled thereto the value of the use and occupation
of the part so admeasured and laid off to her, or of the portion
restitution of which is awarded, during the time she holds
possession thereof, by virtue of the judgment.
Sec. 1071. PLAINTIFF MAY CONSENT TO RECEIVE A GROSS SUM.
In an action for dower, the plaintiff may, at any time before an
interlocutory judgment is rendered, by reason of the defendant's
default in appearing or pleading, or, where an issue of fact is
joined, at any time before the commencement of the trial, file
with the clerk a consent to accept a gross sum, in full
satisfaction and discharge of her right of dower in the real
property described in the complaint. Such a consent must be in
writing, and acknowledged or proved, and certified, in like
manner as a deed to be recorded. A copy thereof, with notice of
the filing, must be served upon each adverse party who has
appeared, or who appears after the filing.
Sec. 1072. DEFENDANT MAY CONSENT TO PAY IT; PROCEEDINGS
THEREUPON.
At any time after a consent is filed, as prescribed in section
1071, and before an interlocutory judgment is rendered, any
defendant may apply to the court, upon notice, for an order
granting him leave to pay such a gross sum. Thereupon the court
may, in its discretion, and upon such terms as justice requires,
ascertain the value of the plaintiff's right of dower in the
property, by a reference or otherwise, and make an order
directing payment by the applicant of the sum so ascertained,
within a time fixed by the order, not exceeding sixty days after
service of a copy thereof and directing the execution by the
plaintiff of a release of her right of dower, upon receipt of the
money. Obedience to the order may be enforced, either by
punishment for contempt, or by striking out the pleading of the
offending party and rendering judgment against him or her, or in
both modes.
Sec. 1073. INTERLOCUTORY JUDGMENT FOR SALE.
Where the plaintiff's consent has been filed as prescribed in
section 1071 and she is entitled to an interlocutory judgment in
the action, the court must, upon the application of either party,
ascertain, by reference or otherwise, whether a distinct parcel
of the property can be admeasured and laid off to the plaintiff,
as tenant in dower, without material injury to the interests of
the parties. If it appears to the court that a distinct parcel
cannot be so admeasured and laid off, the interlocutory judgment
must, except in the case specified in the section 1074, direct
that the property be sold by the sheriff, or by a referee
designated therein; and that, upon the confirmation of the sale,
each party to the action, and every person deriving title from,
through, or under a party, after the filing of the judgment-roll,
or of a notice of the pendency of the action as prescribed by
law, be barred of and from any right, title, or interest in or to
the property sold.
Sec. 1074. DIRECTION THAT A PART BE LAID OFF.
In a case specified in section 1071, where the property, or a
part thereof, consists of one or more vacant or unimproved lots,
the plaintiff's consent may contain a stipulation to take a
distinct parcel, out of those lots, in lieu of a gross sum. In
that case, the interlocutory judgment, instead of directing a
sale, may direct if it appears to be just so to do, that
commissioners be appointed to admeasure and lay off to the
plaintiff a distinct parcel, out of the vacant or unimproved
lots; and, if there is any other property, that it be sold, and a
gross sum be paid to her out of the proceeds thereof, as
prescribed in sections 1075, 1076, 1077 and 1078. The plaintiff's
title to each distinct parcel, admeasured and laid off to her, as
prescribed in this section, is that of an estate of inheritance
in fee simple. In admeasuring and laying off the same, the
commissioners must consider quantity and quality relatively,
according to the value of the plaintiff's right of dower in the
vacant or unimproved lots, out of which the admeasurement is to
be made; which must be ascertained, in proportion to the value of
those lots, as prescribed in sections 1075, 1076, 1077 and 1078,
for fixing a gross sum to be paid to her out of the proceeds of a
sale.
Sec. 1075. LIENS TO BE ASCERTAINED.
Before an interlocutory judgment is rendered for the sale of the
property, the court must direct a reference to ascertain whether
any person not a party, has a lien upon the property, or any part
thereof. But the court may direct or dispense with such
reference, in its discretion, where a party produces a search,
certified by the clerk, or by the clerk and register as the case
requires, of the county where the property is situated and it
appears therefrom, and by the affidavits, if any, produced
therewith, that there is no such outstanding lien. Except as
otherwise expressly prescribed in this article, the proceedings
upon and subsequent to the reference must be the same as
prescribed by law where a reference is made in an action for
partition to ascertain whether there is a creditor not a party
who has a lien on the share or interest of a party.
Sec. 1076. SATISFACTION OR PROTECTION OF LIEN.
Where the interlocutory judgment directs a sale, if the right of
dower of the plaintiff is inferior to any other lien upon the
property, the judgment may, in the discretion of the court,
direct that the property be sold either subject to the lien, or
discharged from the lien; and, in the latter case, that the
officer making the sale pay the amount of the lien out of the
proceeds of the sale.
Sec. 1077. PAYMENT OF TAXES, ASSESSMENTS AND WATER RATES OUT
OF PROCEEDS.
Where a judgment, rendered in an action for dower directs a sale
of the real property, the officer making the sale must, out of
the proceeds, unless the judgment otherwise directs, pay all
taxes, assessments, and water rates which are liens upon the
property sold and redeem the property sold from any sales for
unpaid taxes, assessments, or water rates which have not
apparently become absolute. The sums necessary to make those
payments and redemptions are deemed expenses of the sale.
Sec. 1078. REPORT OF SALE.
Immediately after completing the sale and executing the proper
conveyance to the purchaser, the officer making the sale must
make and file with the clerk a report thereof, showing the name
of the purchaser and the purchase-price paid by him, or, if the
property was sold in parcels, the name of each purchaser and the
price and a description of the parcel sold to him, the sums which
the officer has paid out of the proceeds of the sale, pursuant to
the interlocutory judgment, the purpose for which each payment
was made, the amount and items of his fees and expenses, and the
net amount of the proceeds, after deducting the payments.
Sec. 1079. FINAL JUDGMENT UPON CONFIRMING SALE.
Upon confirming the sale, the court must ascertain, by a
reference or otherwise, the rights and interests of each of the
parties in and to the proceeds of the sale, and also what gross
sum of money is equal to the value of the plaintiff's dower in
the net proceeds of the sale, calculated upon the principles
applicable to life annuities. The court must thereupon render
final judgment confirming the sale and directing that the gross
sum so ascertained be paid to the plaintiff, in full satisfaction
of her right of dower and that the remainder of the proceeds of
the sale be distributed among the persons entitled thereto.
Sec. 1081. CERTAIN PROVISIONS MADE APPLICABLE.
The provisions of law relating to a sale in partition and to the
distribution, investment, and care of the proceeds, apply, as far
as they are applicable, to a sale made as prescribed in this
article and to the distribution of the proceeds of a sale, as
prescribed in section 1079.
Sec. 1091. ACTION TO RECOVER PROPERTY BY REVISIONER OR
REMAINDERMAN, AFTER DETERMINATION OF PARTICULAR
ESTATE.
Where a tenant for life, or for a term of years, suffers a
judgment to be taken against him, by consent or by default, in an
action for dower, the heir or person owning the reversion or
remainder, may, after the determination of the particular estate,
maintain an action to recover the property.
Sec. 1093. COLLUSIVE RECOVERY NOT TO PREJUDICE INFANT.
Where a widow, not having a right to dower, recovers dower
against an infant, by the default or collusion of his guardian,
the infant shall not be prejudiced thereby; but when he comes of
full age, he may bring an action of ejectment against the widow,
to recover the property so wrongfully awarded for dower, with
damages from the time when she entered into possession, although
that is more than six years before the commencement of the
action.
