Supreme Court, November, 1921. [Vol. 117. a summary judgment, in the manner there indicated, "in an action to recover a debt or liquidated demand arising (1) on a contract, express or implied, sealed or not sealed." The class of cases here specified falls within the category of the first and principal class embraced in the English act. In accordance with the decisions of the English courts, as I read them, I am, therefore, of the opinion that this action is embraced within the scope of rule 113. And now to return to the question whether the plaintiff is entitled to the relief he asks under rule 114. I think the answer must be in the affirmative. Assuming that every allegation contained in the separate defenses in the answer be proven to be true, there is still the unequivocal admission that on January 1, 1921, the defendants owed the plaintiff the sum of $14,823.72 as a balance upon the transactions constituting the subject matter of the action. The admission, in my opinion, subjects the defendants to the jurisdiction of the rule. I think the rule accomplishes a needed reform in the domain of the law. It may be drastic, even revolutionary, in the changes effected in our judicial procedure, but we should not overlook benefits conferred upon a creditor in the contemplation of a fancied hardship imposed upon the debtor. The purpose of the English rule, which finds its counterpart in our rule 113, was to enable a creditor speedily to obtain a judgment by preventing the interposition of unmeritorious defenses for purposes of delay. Statements to this effect may be found in the following cases: Thompson v. Marshall, 41 L. T. Rep. (N. S.) 720; Lloyds Banking Co. v. Ogle, 34 id. 584; Jones v. Stone, 70 id. 174. Thus, in the case of Jones v. Stone, the court said: " The proceeding established by that order (Order 14) is a peculiar proceeding, intended only to apply to cases where there can be no Misc.] Supreme Court, November, 1921. reasonable doubt that a plaintiff is entitled to judgment, and where, therefore, it is inexpedient to allow a defendant to defend for mere purposes of delay." If the purpose of rule 113, and the corresponding English rule, is to aid a creditor in the speedy acquisition of a judgment for an entire claim, against which the debtor has no meritorious defense, then, by parity of reasoning, the law should also aid the creditor in obtaining a judgment for a part of that claim, admittedly due and undefendable. This purpose is accomplished by rule 114. The same moral obligation rests upon the debtor to pay the part as to pay the whole, and a failure to meet the obligation justifies a judgment equally in the one case as in the other. No hardship is imposed by compelling a debtor to presently pay what he presently owes. Why should a debtor be absolved from the present payment of what he admits to be due because the creditor, acting within his legal rights, asserts that he owes more? Why should a creditor be denied a judgment for an admitted amount because the debtor says in effect "you have not yet proven that I owe more than I admit to be now due." Moreover, a judgment for the amount of an entire claim, obtained after a protracted litigation, is frequently valueless because of the then financial irresponsibility of the debtor; whereas, a judgment for the admitted part of the claim may be presently collectible. Possibly these and similar considerations have found expression in the rule. I think the application should be granted. The English decisions seem to me to point the way. Dennis v. Seymour, 42 L. T. R. 31; Parker v. Guinness, 27 T. L. Rep. 129; Purkiss v. Low, 3 id. 63, 64; Blumberg v. McCormick, (1915) 2 Ir. Rep. 402. One further consideration may be noted: The relief afforded by rule 114 is to be granted on such terms as may be just." The English rule Supreme Court, November, 1921. [Vol. 117. (order 14, rule 4), above quoted in full, specifies the terms, that is to say, "the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount levied or any part thereof into court by the sheriff, the taxation of costs, or otherwise, as the judge may think fit. And the defendant may be allowed to defend as to the residue of the plaintiff's claim." The framers of rule 114 evidently intended to broaden its scope in this respect, by omitting specifications leaving it to the court in all instances to provide such terms as the justice of the case required. In the English cases the most frequently applied terms have been the direction to pay the admitted amount due into court as a condition of permitting the defendant to defend as to the residue. The parties may be heard on the question of terms on the settlement of the order. Ordered accordingly. HARRY S. CRAWFORD, Plaintiff, v. AMELIA WOODS et al., Defendants. (Supreme Court, Kings Special Term, November, 1921.) Dower release of judgment creditor's action judgment not a lien on inchoate right of dower. execution A wife cannot execute any valid release of her dower in the real estate of her husband in any other way than by joining with him in a conveyance to a third person. A complaint after alleging the recovery of a money judgment against two married women and the return of an execution nulla bona issued upon the judgment, alleged the " possession by said defendants of an inchoate right of dower in certain described premises the fee of which was vested in their Misc.] Supreme Court, November, 1921. husbands. It was further alleged that by a subsequent con- CROSS-MOTIONS for judgment on the pleadings. Lynn C. Norris, for defendants. KAPPER, J. Cross-motions for judgment on the pleadings consisting of a complaint and a demurrer thereto. The complaint alleges plaintiff's recovery of a judgment against the defendants Amelia Woods and Sophie Anwander for $167.95; the issuance and return unsatisfied of an execution against said judgment debtors; the "possession" by said judgment debtors of an inchoate right of dower in certain premises described in the complaint the fee of which was vested in the husbands of said judgment debtors; the subsequent conveyance of said premises by said husbands to two other defendants named, in which conveyance the said wives, the judgment debtors, joined, whereby they "released their right of dower in the said premises " to the said defendants' grantees; "and that said judgment is a lien against the dower of the said defendants, Amelia Woods and Sophie Anwander, in the said premises aforesaid, and that the defendants Abraham Stepein and Abraham Kern, Supreme Court, November, 1921. [Vol. 117. took a conveyance of the said premises aforesaid, subject to the lien of the said judgment." Then follows the prayer for relief, namely: "Wherefore deponent (sic) prays for judgment herein that the judgment aforesaid in the sum of One hundred and sixty-seven and 95/100 ($167.95) Dollars together with the accrued interest thereon, be adjudged and to be a lien upon the hereinbefore described premises, and revive and continue as such, and that an execution may issue against said property and a sale be had of such premises to satisfy the said judgment and for such other and further relief, as to this court may seem just and proper." No charge of fraud is made against any of the defendants. The action has the merit of novelty in that it is concededly without precedent. In Sherman v. Hayward, 98 App. Div. 254, it was sought to satisfy a judgment recovered against a wife out of her inchoate right of dower, and it was held that a wife's inchoate right of dower in real property owned by her husband could not be reached in a judgment creditor's action. The distinction between the case cited where there had been no transfer of the property and the one at bar is that here a ruling is sought to hold the release of dower as the creation of an estate of such tangibility and segregation as to be reachable by a judgment creditor's action. This view ignores the nature or character of an inchoate right of dower. A wife cannot convey or assign her inchoate right of dower. When she joins with her husband in his conveyance she merely releases a contingent future right which operates against her solely by way of an estoppel. Malloney v. Horan, 49 N. Y. 111, 118. She cannot execute any valid release of her dower in the real estate of her husband in any other way than by joining with him in a conveyance to a third person. Malloney v. Horan, supra. Washburn on Real Prop |