Foster v. Foster

New York Supreme Court

Foster v. Foster

45 N.Y. Sup. Ct. 365

DecidedDecember 15, 1885

StatusPublished

This text of 45 N.Y. Sup. Ct. 365 (Foster v. Foster) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foster v. Foster, 45 N.Y. Sup. Ct. 365 (N.Y. Super. Ct. 1885).

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Opinion

Barnard, F. J.:

The point taken by this demurrer has been the subject of much discussion since section 1588 of the Code was passed. The words of that section so far as material to the question are as follows: “ But no person other than a joint tenant or a tenant in common of the property shall be a plaintiff in the action.”

The plaintiff Egbert Foster is the owner of the fee, and his wife has an inchoate right of dower therein.

The husband and wife together make only one interest in the share. The words of apparent exclusion have no reference to her. There are classes named in this section who cannot be plaintiffs in partition. The wife in this case could not be, but when her husband is within the class who can maintain the action, his wife, who has a contingent interest in his share, may be joined with him. She is a necessary party, and it was not intended by this section to compel a husband to put his wife in a hostile position to himself, unless she refused to join with him and thus cut off her possible estate.

The order should be affirmed, with costs and disbursements.

Dvkman, J., concurred.

Order striking out demurrer affirmed, with costs and disbursements.

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Barnard, F. J.:

The point taken by this demurrer has been the subject of much discussion since section 1588 of the Code was passed. The words of that section so far as material to the question are as follows: “ But no person other than a joint tenant or a tenant in common of the property shall be a plaintiff in the action.”

The plaintiff Egbert Foster is the owner of the fee, and his wife has an inchoate right of dower therein.

The husband and wife together make only one interest in the share. The words of apparent exclusion have no reference to her. There are classes named in this section who cannot be plaintiffs in partition. The wife in this case could not be, but when her husband is within the class who can maintain the action, his wife, who has a contingent interest in his share, may be joined with him. She is a necessary party, and it was not intended by this section to compel a husband to put his wife in a hostile position to himself, unless she refused to join with him and thus cut off her possible estate.

The order should be affirmed, with costs and disbursements.

Dvkman, J., concurred.

Order striking out demurrer affirmed, with costs and disbursements.

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Bluebook (online)

45 N.Y. Sup. Ct. 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-foster-nysupct-1885.