As I understand it, the theory on which my associates recommend a reversal of the order in this case is that the plaintiff has been defrauded out of some legal right by the act of defendants. I do not see it that way.
The deed in question from Reuben Melenky to his son, defendant Asher P. Melen, otherwise known as Isaac P. Melenky, was made in December, 1913. Some eight months after that, when the father was in California, he married the plaintiff.. This was in August, 1914.
I am unable to find in the record any allegation that when the deed in question was made the elder Melenky was engaged to be married to the plaintiff, or that such marriage was even thought of. There is an allegation in the 3d paragraph of the complaint that prior to plaintiff’s marriage to Reuben Melenky he stated to her that he owned a great deal of valuable real estate in Rochester, including the premises referred to, and that she believed said statement, and'relied on it.
That is far short of an allegation that when she became engaged to marry the old gentleman he actually owned this *74property, and that she promised to marry him relying on the truth of that statement.
I cannot see how any fraud could "have been perpetrated on plaintiff by the old gentleman’s deeding the property in question to his son before plaintiff’s marriage to the father was ever thought of. If plaintiff and her present husband had been engaged to be married at the time of the conveyance, the case of Youngs v. Carter (10 Hun, 194) would be in point. There a widower was engaged to be married to the plaintiff and the time for the marriage had been fixed. Because of the illness of' the prospective bridegroom the marriage was postponed from August 27 to September 3,1872. Between these dates and on August thirtieth the old gentleman conveyed to children by his first marriage real estate worth $150,000. This all occurred without the knowledge of the prospective bride, and upon her discovering it after her marriage she brought an action to set aside the conveyance in consequence of the fraud practiced on her, and succeeded.
I cannot see where that case is any authority .for plaintiff here, for the facts are not similar. There plaintiff and the grantor were actually engaged to be married when the deed was made. Here there was no such relationship, and so far as I can discover in the record, when the deed of the Front street property was made to the son, Reuben Melenky did not even know plaintiff, to say nothing about being engaged to marry her. Therefore, I cannot see how she had any rights, either actual or possible, out of which she could have been defrauded by her husband executing to his son the deed referred to in the complaint.
At no time since plaintiff’s marriage to Reuben Melenky has he owned the real property in question, or had any interest in it, excepting a life estate. Plaintiff’s right of dower did not attach for the husband was not seized of the property during their marriage. (Real Prop. Law, § 190.)
The husband has not been seized of an estate of inheritance in this property at any time during his marriage to the plaintiff, consequently dower did not attach. (Phelps v. Phelps, 143 N. Y. 197; Nichols v. Park, 78 App. Div. 95; Poillon v. Poillon, 90 id. 71.)
Under the facts as set forth in the complaint and conceded *75by the demurrer, I cannot see where, at the time the deed in question was made, plaintiff had any “ rights ” which could in any way be affected by the conveyance. She was a stranger to the transaction, and at that time was evidently a stranger to all the parties.
While it is true that dower is favored in the law, it is equally true that before a wife can claim it she must bring herself within the statute which gives her the right to assert it.
Plaintiff’s husband was not seized of' an estate of inheritance in the real estate described in the deed in question at any time during the marriage, and it seems to me by the very language of the statute itself, the husband not having been seized of such an estate during the marriage, plaintiff has not brought herself within the statute whereby she could assert even a contingent dower interest in this property.
I dissent and vote for affirmance of the order and judgment.
Order reversed, with ten dollars costs and disbursements, and the demurrer overruled, with ten dollars costs, with leave to the defendants to plead over within twenty days upon payment of the costs of the motion and of this appeal.