That the plaintiff is endowable of the surplus which remained after the payment of the mortgages which had been foreclosed, is too well settled to be questioned. (Hawley v. Bradford, 9 Paige. 200; Vartie v. Underwood, 18 Barb. 561.) Hor will her right be affected whether the sales upon the foreclosure suits took place before or after the death of her husband, for it has been decided in this court that the inchoate right of dower of the wife is as much entitled to protection as the perfected or vested rights of the widow. (Mills v. Van Voorhies, 20 N. Y. 412.) Indeed these propositions are not denied by the counsel for the *536defendant, but the ground of defense here is, that she has lost her right to make such claim in this suit by reason of her omission to assert it either during the pendency of the foreclosure suits or upon the application after the sale for the distribution of the surplus, or in the suit subsequntly brought by the defendant against the creditors of the husband to settle the order of payment, and enable him as assignee of the deceased husband to close his trust. To both suits the plaintiff was made a party, and a summons was served upon her, but in neither did she appear, or put in any answer. The question is, whether, by reason of such non-appearance in these actions, and by her failure to file a notice and make a claim for the surplus moneys, she is precluded from maintaining the present action claiming dower in the surplus.
The judge, before whom the cause was tried, finds the facts upon which the defendant’s counsel bases his claim to defeat the action; and he also finds, that she had no notice of the proceedings in relation to the distribution of the surplus money except the service of the summons in the foreclosure suits; that the suit of the defendant against the creditors of Matthews, to which the plaintiff was made a party, was for the purpose of obtaining the advice and direction of the court as to certain claims of creditors to priority of payment, and to enable him to distribute the proceeds, and that such action was still pending and undetermined. It' appears further in the case, that the defendant, IDuryee, still has the fund in his hands undistributed to any of the parties for whose benefit the trust was created.
The age of the plaintiff was admitted on the trial, and also that she had, before the commencement of the suit, and after the death of her husband, demanded from the defendant her dower in the surplus funds, which the defendant had refused to pay. The judge held, as conclusions of law, that she was entitled to dower as claimed, and he determined the. amount, and that she was not precluded from maintaining this suit by reason of the failure to appear and answer in the foreclosure suits, or to make a claim under the proceeding to distribute the surplus, and notwithstanding the pendency of *537the action of the defendant against the creditors of Matthews, to which she was made a party.
I am. of opinion that neither of the objections to the maintenance of this suit can he maintained:
I. The foreclosure suits, as well as the proceeding in reference to the surplus, and the suit of the defendant against the creditors, were all pending during the life-time of the husband, and all but the last terminated prior to his death. In the foreclosure suits the plaintiff’s right of dower was in no respect in issue, and proved no subject of adjudication. She had united in two of the mortgages, and the third was for the purchase-money, as against these she had no dower right to assert. Whether she might have a claim in any event, could only be determined after the termination of these suits, and if no surplus remained after the sale, her right would never arise; as matters stood at the commencement, and during the progress of these suits, she had no claim whatever to assert, and she was in truth a merely formal party to the suit, and any judgment rendered therein could in no way pass upon or affect rights which might thereafter arise.
II. The proceeding by which the defendant possessed himself of the surplus moneys is not a bar to this suit. She had no notice of that proceeding save the service of the summons in the foreclosure suits, and that, clearly, was not sufficient at that time; her right was still inchoate, nor was it possible then to determine her interest even if she had appeared. In that proceeding the defendant was adjudged to be entitled to the surplus only as to those who were properly before the court upon the hearing. There is nothing in the nature of an estoppel to forbid the assertion of the claim now made in this suit. The defendant has parted with nothing, nor has he been induced to take any action by reason of her failure on that occasion to assert any right she may be supposed to have had. He stands as a naked trustee with no personal interest to be affected, no loss to be incurred from any decision that shall be made touching the distribution of the funds in his hands. The creditors have no rights superior to the equity of the plaintiff. She is a dowress, a favorite of the law, and *538in a position where her rights can now be fully protected and enforced.
III. Neither can it be successfully contended that the suit of the defendant against the creditors of the husband, to which both the plaintiff and her husband are made parties, operates to prevent him from maintaining the present action. The object of that suit, as stated in the answer in this case, and as found by the court, was to enable the defendant to close his trust under the assignment, and obtain the advice of the court as to the order of payment. Why the plaintiff was made a party does not appear, and it is certain that there "was no allegation in the complaint in that action in regard to her dower right in the surplus moneys, and no issue whatever has, or could be raised, whereby that subject could be brought into contestation, or any adjudication whatever rendered to determine her right. While it is true, as a general rule, that where a party to an action can enforce a remedy, but neglects to do so, he cannot resort to a new and independent action to accomplish the same result, yet this rule can only be invoked where the right not only exists, but where there was a full opportunity to assert the right, and ask for the remedy, in an action presenting or affording the opportunity to present the claim, and where an issue is, or can be legitimately framed to try it, and the court has jurisdiction both of the parties and of the subject-matter.
The defendant’s counsel claims, that, by bringing this action, the plaintiff affirms both the regularity and the binding force of the orders by which the surplus money was paid to the defendant, and that the result would be that she will thus claim the benefit of the orders as against the defendant, and avoid them as respects herself. No such result follows from this action. It does not question the regularity of the orders so far as respects the parties concerned in and bound by them, and, so far as she is affected, there is no necessity for questioning the orders, for the only effect of them has been to bring the money into the hands of the defendant as a trustee for distribution to the parties entitled to share in *539them, and the object and result of this action is to determine the amount of the plaintiff’s interest therein.
It is insisted that the amount found by the judge for the dower interest of the plaintiff was erroneous. The counsel should have shown in what respect it is erroneous. It appears to have been made in conformity with the eighty-fourth rule of the Supreme Court, and the exception is simply to the finding, without indicating in what respect, if any, the judge erred in the computation. Such an exception, if the judge was right in his general conclusion, presents no legal proposition that this court is called to review.
The demand of dower, before the commencement of the action, was sufficient. It might, indeed, have been made precise and specific, by claiming one-third part of the surplus moneys then in the hands of the defendant. But the defendant was not misled by the character of the demand. He knew very well what it was the plaintiff sought, and not only indicated no intention of complying, but, as the case shows, admitted on the trial that he refused to pay the same, or any part thereof.
I am unable to see that any error was committed upon the trial, dr in the judgment rendered, and am accordingly of opinion that it should be affirmed, with costs out of the fund.