Bamber agt. City of Rochester. the exercise of corporate power. The same doctrine was held in the case of Tone agt. The Mayor, Aldermen, &c., of the City of New York (70 N. Y., 157–165.) These and numerous other cases to which our attention has been called approve and adopt the rule declared. It now remains to be determined whether or not the defendant is brought within the rule in which the maxim of respondeat superior applies. In the first place the board of health is elected by the common council of the city; they hold their position during the pleasure of the common council. The common council can hold them responsible for the manner in which they discharge their trust, by removing them in case of failure to discharge it properly. So far they are also brought within the rule, but the council must also be able to control them in the discharge of their duties, and those duties must relate to the exercise of corporate powers and for the peculiar benefit of a corporation in its local or special interest. In the first place the council has not power to control them in the discharge of their duties, for a portion of those duties, at least, are prescribed by the general statute of the state. In the second place the duties devolving upon the board of health do not relate to the exercise of corporate powers, neither are their duties for the benefit of the corporation in its local or special interest. Their duties relate to the preservation of the health of the public; the individuals residing in the city may be benefited by the faithful discharge of the duties of such officers; so may the public at large. The duties of such officers are, therefore, public in their nature, and they should be regarded as the servants and agents of the public instead of the corporation. We do not understand this conclusion to be in conflict with the case of Tormey agt. The Mayor &c. (12 Hun, 542). That case was a demurrer to the complaint. The plaintiff alleged that the servants and agents of the corporation other than the board of health took part in the illegal removal complained of, and the demurrer was overruled upon that ground. The learned justice, in Aikman agt. Harsell. delivering the opinion of the court, says: "If the facts turn out as they have been alleged, and it must now be supposed that they will, then even if the wrong was in part committed by the health department, acts of an unlawful nature are also shown to have been perpetrated by the officers and agents of the defendant; and for them, and to the extent the plaintiff was injured by them, it should be held to be legally liable.” Numerous other authorities were cited by the appellant, but in those cases the duties of the officers and agents were of a corporate character, and not of a public nature. We are therefore of the opinion that the defendant is not brought within the rule, and that the plaintiff was properly non-suited upon the trial. Judgment affirmed. SMITH, P. J., and HARDIN, J., concur. SUPREME COURT. SARAH B. AIKMAN agt. BLAISE L. HARSELL and others. Dower-when widow entitled to admeasurement - when acceptance of rents and execution of leases does not preclude her from demanding further To bar dower, the grant must be in fee tail, or for the admeasurement term of her life. The plaintiff sues for admeasurement of her dower in real estate at cerner of Broadway and Howard street. William D. Blackwell died in 1848 intestate, possessed of the property in question, leaving a widow, Mrs. L. A. Blackwell, one daughter, Mrs. L. A. Poillon, and one son, Joseph Blackwell, who subsequently married plaintiff. Joseph Blackwell died in 1859 intestate, without issue, and possessed of an undivided one-half of these premises, subject to his mother's dower right. He left him surviving his widow, the plaintiff, his sister and his mother. After his death his sister executed leases in her own name on the different parcels of real estate. These leases were outstanding at her death. She died in September, 1866, leaving a will appointing trustees of her property. After her death, the trustees appointed by her executed leases of separate parts of these premises for two years. Mrs. Aikman agt. Harsell. L. A. Blackwell and plaintiff joined with the trustees in the leases, and the rents were to be divided as agreed upon. The trustees received three-ninths, Mrs. L. A. Blackwell five-ninths, and the plaintiff oneninth. Mrs. L. A. Blackwell died February 8, 1873. The original trustees under the will of Mrs. Poillon resigned, and new trustees were appointed, who took a conveyance of the property, subject to the plaintiff's dower right. The defendants claimed that plaintiff, by reason of her acceptance of rents as above stated, had precluded herself from demanding further admeasurements of her dower, and that she could not have dower out of lands of which the ancestor's widow was endowed : Held, that there had been no assignment of the dower of Mrs. L. A. Blackwell intermediate the death of her husband and of her son Joseph; and that upon the death of Joseph her right of dower became merged in the life estate which she acquired by statute in his undivided one-half of the lands. Held, that nothing was done by plaintiff, Mrs. L. A. Blackwell and Mrs. Poillon, prior to the latter's death, which estopped the plaintiff from maintaining this action, and that plaintiff's subsequent joining with the trustees in the leases was not an admission that her dower had been assigned, and that she was only entitled to one-ninth of the rent of the lands. Special Term, December, 1880. George C. Blanke, for plaintiff. B. L. Harsell, for defendants. LAWRENCE, J.-There was no actual admeasurement of the dower of Mrs. L. A. Blackwell up to the time of the death of her son, Joseph Blackwell, in 1859. The joining of the mother with her son, Joseph, and her daughter, Mrs. Poillon, in the lease to Josiah W. Baker, did not amount to an admeasurement or assignment of her dower. For what purpose she joined in the execution of that lease does not appear from the evidence, but it is clear from Baker's testimony that Joseph Blackwell was the party to whom all the rents were paid, and who assumed the right, in consideration of money paid by Baker to him, to make a reduction in the rent. Subsequently to the death of Joseph Blackwell in 1859, the rent was paid to Mrs. Poillon, who had become, by the death of her brother Aikman agt. Harsell. without issue, the owner of the entire fee, subject to the life estate and dower right of her mother therein, and to the dower of the plaintiff, and all the leases which were executed after 1859, up to September, 1866, when she died, were in the name of Mrs. Puillon as sole lessor. No allusion is made in any of those leases to any interest of the plaintiff or of Mrs. L. A. Blackwell in the premises leased. Before assignment the widow has no estate in the lands of her husband; her right is a mere chose in action, which cannot be sold upon execution at law; until that time it is strictly a claim (Lawrence agt. Miller, per GARDINER, J., 2 Comst., 254; Moore agt. The Mayor, &c., of N. Y., 4 Seld., 110); and it was held by the court of appeals, in Ellicott agt. Moser (3 Seld. R., 301), that the widow would not be barred from maintaining an action for her dower by the fact that she had received for several years after the death of her husband one-third of the rents of lands which had been leased by him. When Joseph Blackwell died, it seems to me that nothing had been done to deprive Mrs. L. A. Blackwell of her right of action for her dower, and that she could at any time prior to his death have maintained her action (see cases supra). But when Joseph Blackwell died she became, under the statute, entitled to a life estate in the one undivided half of the premises of which he died seized, subject to the dower right of the plaintiff (2 R. S., 1133, sec. 6). By force of the descent of this estate for life to her in Joseph's undivided half, her claim for dower in Joseph's share, I think, became merged in the life estate (1 Washburne on Real Property [4th ed.], 260, sec. 30; 1 Scribner on Dower, 224, sec. 18; 2 Scribner on Dower, 244, sec. 17; Wade agt. Miller, 32 New Jersey L. R., 296; Jenkins agt. Van Schaick, 3 Paige, 242; Harris agt. Fly, 7 Paige, 421; 4 Kent's Commentaries, 102). The objection, therefore, that the plaintiff cannot have dower out of the lands of which the ancestor's widow was endowed cannot be urged in this case. Aikman agt. Harsell. The rule is, that if there be no assignment of dower to the ancestor's widow, the seizin or estate in possession which descended upon the heir is not defeated, and, consequently, his widow is entitled to dower in the entire premises (Elwood agt. Klock, 13 Barb., 50). In that case the court held "that the rule that dos de dote pete non debet, is only applied when dower is actually assigned. If no dower is assigned to the widow of the person first seized, the principle is not applicable" (Elwood agt. Klock, 13 Barb., 50, and particularly the opinion of ALLEN, J., at pp. 55 and 56, and cases there cited). If I am correct in the conclusion that there had been no assignment of the dower of Mrs. L. A. Blackwell, intermediate the death of her husband and of her son Joseph, and that upon the death of Joseph her right of dower became merged in the life estate which she acquired in his individual onehalf of the lands, it remains to be considered whether there was anything done by plaintiff and Mrs. L. A. Blackwell and Mrs. Poillon, prior to the latter's death, which can be considered as having estopped the plaintiff from maintaining this action. The leases executed by Mrs. Poillon do not throw any light upon this subject. They are in the name of Mrs. Poillon, as sole lessor, as has been before stated. What proportion of the rents each claimed to be entitled to receive does not appear from those instruments. Mrs. Poillon dealt, so far as can be learned from those instruments, with the property entirely as her own. Certainly there is nothing on the face of the leases which can be fairly construed as an acknowledgment on the part of the plaintiff, either that the dower of Mrs. L. A. Blackwell had been assigned, or that she, as the widow of Joseph Blackwell, was only entitled to one-ninth of the rents of the premises in question. Has anything been done since the death of Mrs. Poillon which should estop the plaintiff from maintaining this action? It is true that she joined in the leases, which were drawn by VOL. LXIII 15 |