$ 1591. Such an application must be by a petition, which must describe the real property proposed to be partitioned; must state the rights and interests of the several owners thereof; must specify the particular partition proposed to be made; and must be verified by affidavit. The court may order notice of the application to be given to such persons as it thinks proper. § 1592. [Am'd 1886.] If after due inquiry into the merits of the application by a reference or otherwise, the court is of the opinion that the interests of the infant, or of the idiot, lunatic, or habitual drunkard will be promoted by the partition, it may make an order authorizing the petitioner to agree to the partition proposed, and in the name of the infant, or of the idiot, lunatic, or habitual drunkard, to execute releases of his right and interest in and to that part of the property which falls to the shares of the other joint-tenants or tenants in common. The court may, in its discretion, for the furtherance of the interests of said infant, idiot, lunatic, or habitual drunkard, direct partition to be so made as to set off to him or them his or their share in common with any of the other owners, provided the consent in writing thereto of such owners shall be first obtained. 1593. Releases so executed have the same validity and effect, as if they were executed by the person in whose behalf they are executed, and as if the infant was of full age, or the idiot, lunatic, or habitual drunkard was of sound mind, and competent to manage his affairs. § 1594. The people of the State may be made a party defendant to an action for the partition of real property, 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. 1595. An exemplified copy of the judgment-roll, or of the final judgment, in an action for partition, may be recorded in the office for recording deeds in each county in which any real property affected thereby is situated. ARTICLE THIRD. ACTION FOR DOWER. 1596. Limitation of action for § 1603. 1d.; against heirs, etc., dower. aliening land. 1604. Action barred by assign ment of dower. § 1611. Setting aside report. 1612. Fees and expenses. 1613. Final judgment. 1614. Plaintiff may recover sum ment. 1616. Appeal not to stay execution, if undertaking is given. 1617. Plaintiff may consent to receive a gross sum. § 1618. Defendant may consent to 1619. Interlocutory judgment for 1620. Id.; directing a part to be 1621. Liens to be ascertained. 1623. Report of sale. 1624. Final judgment thereon. § 1596. [Am'd 1882.] An action for dower must be 31 Hun, 634 commenced by a widow within twenty years after the death of her husband; but if she is at the time of his death either 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life; The time of such a disability is not a part of the time limited by this section. And if at any time before such claim of dower has become barred by the above lapse of twenty years, the owner or owners of the lands subject to such dower, being in possession, shall have recognized such claim of dower by any statement contained in a writing under seal, subscribed and acknowledged in the manner entitling a deed of real estate to be recorded, or if by any judgment or decree of a court of record within the same time and concerning the land in question, wherein such owner or owners were parties, such right of dower shall have been distinctly recognized as a subsisting claim against said lands, the time after the death of her husband, and previous to such acknowledgment in writing or such recognition by judgment or decree, is not a part of the time limited by this section. Supp. 822. § 1597. Where the property, in which dower is claimed, 2 N. Y. is actually occupied, the occupant thereof must be made defendant in the action. Where it is not so occupied, the 85 Hun, 552. 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. § 1598. In either of the cases specified in the last section, 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. 1599. 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 de 2 N. Y. Supp. 322 81 Hun, 590. fendants, although they possess or claim title to different portions thereof in severalty. § 1600. 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 mesne 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 anything for the use of permanent improvements, made after the death of the husband. § 1601. Where a widow recovers dower, in a case not specified in the last section, 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 anything 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 the last section. § 1602. The last two sections 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. § 1603. 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. § 1604. 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. § 1605. Where a widow, not having a right to dower, recovers dower against an infant, by the default or collu sion 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. 1606. The complaint, in an action for dower, must describe the property, as prescribed in section one thousand five hundred and eleven of this act; and must set forth the name of the plaintiff's husband. 1607. 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. § 1608. Each of the commissioners, or the referee, as the case requires, must, before entering upon the execution of his duties, subscribe and take an oath, before an officer specified in section eight hundred and forty-two of this act, to the effect, that he will faithfully, honestly, and im partially discharge the trust reposed in him. The oath must be filed with the clerk, before a commissioner or a referee enters upon the execution of his duties. The court may, at any time, remove the referee, or either of the com. missioners. If either of them dies, resigns, or neglects or refuses to serve, or is removed, the court may, from time to time, appoint another person in his place. § 1609. 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 perma nent 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 piaintiff a distinct parcel of the property, as prescribed in the foregoing subdivision of this section, they must report that fact to the court. 13 Hun, 352. 4. They may employ a surveyor, with the necessary assistants, to aid in the admeasurement. § 1610. 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. § 1611. 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 title, with respect to those first appointed. § 1612. 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. § 1613. Upon the report being confirmed by the court, final judgment must be rendered. If the referee or com missioners 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 it 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 sums, 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. § 1614. 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 instalment of the sum, so |