Sarah J. Burnett, Respondent, v. Margaret E. Burnett and Others, Appellants

Sarah J. Burnett, Respondent, v. Margaret E. Burnett and Others, Appellants. Action for admeasurement of dower in land conveyed by the husband {since deceased) of the plaintiff by a deed, in which she did not join — a counterclaim for damages for the amount of such dower interest cannot be interposed although the plaintiff was the sole devisee and legatee of her husband’s will—a judgment sustaining a demurrer to a portion of an answer should be interlocutory—it should, not authorize the collection of costs. In an action for the admeasurement of dower in real estate, of which the plaintiff claimed that her deceased husband was seized during coverture, and which he had conveyed by a deed, in which she did hot join, the defendants interposed an answer alleging, as a counterclaim, that the plaintiff’s husband had. devised and bequeathed to her all his property, both real and personal; that he was • solvent and responsible; that the 'property so devised and bequeathed was greater in value than the amount of the plaintiff’s claim for dower; that the plaintiff, as beneficiary under the will, was indebted to the defendants in the amount (if any) which would be recoverable in this action for admeasurement of dower, and that the benefits received by her under the will should be set off against the plaintiff’s claim. Held, that the counterclaim was demurrable; That the defendants’ claim did not arise put of the plaintiff’s claim and was not connected in a legal sense with the subject-matter of the plaintiff’s action, and that, therefore, the matter set forth in the answer did not constitute a counterclaim within the definition contained in section 501 of the Code of Civil Procedure. . A judgment sustaining a demurrer to a counterclaim interposed in an answer containing other issues should be interlocutory, and should not permit the collection of the costs until judgment is rendered on the other issues. Appeal by the defendants, Margaret E. Burnett and others, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on ‘the 18th day of October, 1902, upon the decision tif the court, rendered after a trial at the Westchester Special Term, sustaining the plaintiff’s demurrer to the second separate defense contained in the defendants’ answer. Alvan R. Johnson, for the appellants. Michael J. Tierney, for the respondent. [MAJORITY — Hirschberg, J. ;] Hirschberg, J. ; The action is for the admeasurement of dower in certain real estate, of which the plaintiff alleges her husband was seized during coverture, and which he conveyed to William Burnett by a deed of conveyance without her signature. She alleges in the complaint that her husband has since died, that she has not assigned, released or conveyed her dower in the real estate, and that William Burnett has since died intestate, seized and possessed of such real estate, leaving the defendants as his heirs at law and their husbands in possession of the property as tenants in common, subject to her dower right. The answer of the defendants denies any knowledge or information sufficient to form a belief that the plaintiff’s husband was seized and possessed of the premises during coverture with the plaintiff, and denies that the plaintiff is entitled to recover any sum of money as dower or otherwise. As a further and separate answer and defense and as set-off against the plaintiff’s claim, the answer further alleges that the plaintiff’s husband by will gave, devised and bequeathed to her all his property, both real and personal; that he was solvent and responsible; that the property so devised and bequeathed is greater in value and amount than the plaintiff’s claim in this action; that the plaintiff as beneficiary under such will is indebted to the defendants in the amount (if any) which would be recoverable in this action, and that the benefits received by her under the will should be set off against the plaintiff’s claim. The plaintiff demurred to the second defense upon the ground that it was insufficient in law, and upon the trial of the issue of law thus raised has obtained a judgment sustaining the demurrer, awarding her taxed costs and disbursements, and decreeing that she have execution therefor. The defense does not present a counterclaim within the terms of the definition contained in section 501 of the Code of Civil Proceddure, and the demurrer was properly sustained. The sole contention of the appellants upon this point is that the aim of equity is to prevent circuity of action and to set litigation at rest. This aim is accomplished, however, only in obedience to and not in defiance of the statutory rules and forms of practice. The plaintiff’s claim arises out of the seizin of her husband of the real estate during coverture, and the defendants’ claim for damages against her as. her •husband’s devisee does not arise out of nor is it connected in a legal ■sense with the subject of her action. The judgment, however, is irregular in that it purports to be final and not interlocutory, and in that it permits the collection of the costs before a trial of the whole issue. Section 1221 of the Code of Civil Procedure provides for final judgment on the whole issue only after all the issues have been tried, where one or more issues of law and one or more issues of fact arise in the same action. In Biershenk v. Stokes (46 N. Y. St. Repr. 179) it was held that the proper judgment upon a demurrer to a counterclaim set up in an ■answer containing other issues, should be interlocutory, and that a final judgment cannot be entered until the case is ready for final judgment upon all the issues. And in Armstrong v. Cummings (22 Hun, 570) it was held that the costs granted upon sustaining a demurrer to part of an answer could neither be recovered nor assigned until judgment should be rendered on the issues generally. The judgment should be modified in the particulars indicated, and as modified affirmed, without costs of this appeal. Goodrich, P. J., Bartlett, Woodward and Hooker, JJ. concurred. Judgment modified in accordance with the opinion of Hirschberg, J., and as modified affirmed, without costs of this appeal.