
    Abram M. Roos, Resp’t, v. Isaac Lockwood, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Specific performance—When will not be decreed.
    Defendant agreed to convey certain real estate to plaintiff, but bis wife, who had not signed the contract, refused to join in the deed. Held, that this was not a proper case for a decree of specific performance, leaving the dower right outstanding, there being nothing to show that one-third of the purchase money should be rendered worthless to defendant during his wife’s life; but that plaintiff should prove his damages.
    Appeal from judgment decreeing specific performance of a contract for the sale of real estate.
    
      B. R. Champion, for app’lt; Lewis Hasbrouch (W. F. O’Neill, of counsel), for resp’t.
   Barnard, P. J.

Thedefendant, by an agreement in writing, undertook to give a deed of a 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 orie-third of the purchase money on mortgage at five 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 decree 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 should 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. Von 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. Bostwich v. Beach, 103 N. Y., 414; 3 K Y. State Bep., 659.

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.

Dykman and Pratt, JJ., concur.'  