
    Roos v. Lockwood.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1891.)
    Specific Performance—Decebe—Damages.
    Defendant having failed to perform an agreement to convey certain real property to plaintiff, by reason of the refusal of defendant’s wife to join in the deed, suit for specific performance was brought by plaintiff, in which judgment was rendered for performance by defendant, and that, if his wife persisted in her refusal, plaintiff be permitted "to deduct one-third of the purchase money, or, at his election, leave that part of it on mortgage as indemnity against the wife’s right of-dower. Held that, there being nothing to show that plaintiff should be deprived; of one-third of the purchase money during his wife’s life, specific performance should not be decreed, but a new trial should be granted, that plaintiff might prove his damages.
    Appeal from special term, Orange county.
    Action by Abram M. Boos against Isaac Lockwood for specific performance of a contract to convey real property. Defendant appeals from a judgment for plaintiff entered on trial by the court without a jury.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      B. B. Champion, for appellant. lewis Hasbrouck, (W. F. O'Neill, of counsel,) for respondent.
   Barnard, P. J.

The defendant, by an agreement in writing, undertook to give a deed of an hotel property in Orange county to the plaintiff for the sum of $8,500, all to be payable at or before the delivery of the deed. The defendant’s wife refused to join in the deed. The evidence does not show that this refusal by the wife is in any way attributable to the husband. The-court ordered a specific performance of the contract, and, if the wife persisted in her refusal, the plaintiff was permitted to deduct one-third of the purchase-money, or, if the plaintiff so elected, to leave one-third of the purchase money-on mortgage at 5 per cent, until payable, after the wife’s death, as indemnity against the wife’s right of dower. The power of a court of equity to de- - cree a specific performance in such a case as this cannot be doubted. A contract made by a husband may be enforced against him if the purchaser elects,, even if the dower right of the wife be left outstanding. The present case is-not one where such specific performance should be granted. The wife holds-an estate which the husband cannot sell, and, if he does, he subjects himself to an action of damages, and also to one for specific performance; but there is nothing in the case which shows that one-third of the purchase money is to be rendered valueless to him during his wife’s life. Such an arrangement, moreover, renders the title exceedingly unmerchantable for an indefinite period. Specific performance is not a right absolute under all circumstances. Hubbell v. Van Schoening, 49 N. Y. 326. The wife has not signed the contract of sale, and therefore cannot be compelled to accept, in lieu of dower, a gross sum, and no greater sum than a gross sum in lieu of dower is proper* Bostwick v. Beach, 103 N. Y. 414, 9 N. E. Rep. 41. We think, therefore-* that the judgment should be reversed, and a new trial granted, to the end that the plaintiff may prove his damages as in an action at law; costs to abide event. All concur.  