Feitner v. . Lewis
New York Court of Appeals
Appeal from order of the General Term of the Superior Court of the city of ¡New York, entered upon an order made May Y, 1888, which overruled defendant’s exceptions, denied a motion for a new trial and directed judgment in favor of plaintiff on a verdict. This action was brought to recover dower. The plaintiff in 1836 joined with her husband in executing a mortgage upon his land.
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Appeal from order of the General Term of the Superior Court of the city of ¡New York, entered upon an order made May Y, 1888, which overruled defendant’s exceptions, denied a motion for a new trial and directed judgment in favor of plaintiff on a verdict. This action was brought to recover dower. The plaintiff in 1836 joined with her husband in executing a mortgage upon his land. In 1838 a suit for the foreclosure of the mortgage was instituted, in which the husband and wife were made parties defendant. A copy of the writ of subpoena was served upon him, and a copy was delivered to him with…
1Opinion of the CourtGray, J.
I think the appellants should prevail. The court below fell into the error of supposing that under the rules and practice in chancery proceedings, a personal service of the writ of subpoena upon the wife was necessary, although the action did not relate to her separate property. The only interest which the plaintiff had was an inchoate right of dower in the mortgaged land. That arose simply from her status as wife and gave her no separate estate.
Chancellor Kent stated the rule, in Ferguson v. Smith (2 Johns. Ch. 139), tobe “that the service of a subpcena against husband and wife on the…
2Cases cited2 opinions
- Eckerson v. VollmerNew York Supreme Court · 1855
- Foote v. LathropNew York Supreme Court · 1869
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- Calkins v. Department of Labor & IndustriesWashington Supreme Court · 1941
- Spilde v. JohnsonSupreme Court of Iowa · 1906
- Providence Steam & Gas Pipe Co. v. ConnellNew York Supreme Court · 1895
- Heuchert v. State Industrial Accident CommissionOregon Supreme Court · 1942
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