Feldman v. Lisansky , 121 Misc. 658 ( 1923 )

MacCrate, J.

The answer of the defendant Abraham Lisansky states his readiness to convey to plaintiff and allow an abatement of the purchase price if fixed rules can be found for determining the amount of the abatement.

Notwithstanding the attempts of the defendant to limit the effect of the decision in Bostwick v. Beach, 103 N. Y. 414, to cases involving vested dower rights, in this department, upon the authority of that case, abatements have been allowed for inchoate dower rights, and the method laid down in Jackson v. Edwards, 7 Paige, 386,408, for valuing such rights has been followed. Therefore, although the refusal of the wife to sign the deed is her own act uninfluenced by her husband, in view of the allegations of his answer the defendant husband will be directed to convey to the plaintiff, subject to her dower right. Moreover, she, on her motion, was taken out of the case. Roos v. Lockwood, 59 Hun, 181, cited by defendant, unmistakably states that specific performance by the husband can be directed. In that case, however, the trial court adopted an improper method to fix the amount of the abatement.

The testimony warrants findings that the wife is now sixty-four and the husband sixty-six. On those findings and the further finding that the property is worth the contract price, $8,600, the purchase price should be reduced by the sum of $352.98.

Judgment accordingly.