
    Elijah R. Schoonmaker, App’lt and Resp’t, v. Frank W. Bonnie et al., Resp’ts and App'lts.
    
    
      (Court of Appeals,
    
    
      Filed March 18, 1890.)
    
    Appeal—Reversal cannot be ordered on points not raised on trial.
    The general term reversed a judgment of a referee in an action for specific performance, which required the.r wives to join in a conveyance when they were not parties to the contract of sale. Held, that as this point was not raised in any form on the trial, the reversal was error.
    Appeal from judgment of supreme court, general term, fifth department, reversing judgment as to appellants, Mrs. Frank W. Bonnie and Mrs. Robert Bonnie, in all respects, and reversing the judgment as to Frank W. and Robert P. Bonnie, and granting a new trial.
    
      Wm. H. Henderson, for pl’fiE; John J. Inman, for deft.
    
      
       See 6 N. Y. State Rep., 122.
    
   Andrews, J.

The general term reversed that part of the judgment entered upon the report of the referee which required the defendants, Mrs. Frank W. Bonnie and Mrs. Robert P. Bonnie, the wives of the other defendants, to join with their husbands in the conveyance to the plaintiff, on the ground that they were not parties to the contract for the sale of the land, for the specific performance of which the action was brought. This ruling of the general term presents the main question in the case.

If the point upon which the general term proceeded had been raised on the trial, and presented by a proper exception, we perceive no ground for questioning its conclusion.

The defendants, Frank W. Bonnie and Robert P. Bonnie, had title to the land embraced in the contract. Their wives had simply an inchoate right of dower therein. The contract, as the-complaint shows, was made by the husbands, and to it their wives were not parties. The admission in the answer, viz.: “ Defendants further admit that they did promise to convey the-said premises to the plaintiff,” although equivocal and misleading, taken in connection with the allegation in the complaint, may, we think, be construed as an admission simply of the contract alleged by the plaintiff. ¡

The referee in his report finds that the contract was entered into' between the plaintiff and the two male defendants. The judgment, however, requires the wives to join in the conveyance directed, as if they had contracted with their husbands to convey to the plaintiff, of which there is no evidence. Even if they had been parties to the contract, a very serious question would arise as to the power of the court to specifically enforce, as against them, a contract to release their dower interest, upon a consideration passing to their husbands, and especially as tire contract was made in another state by residents there, wherein the common law disabilities of married women, so far as appears, still exist.

The reversal in this case was upon the law and not upon the facts, and to affirm the judgment of reversal it must appear that some exception was taken on the trial, raising a question of law, and that such question was erroneously decided. The point upon which the general term decided the case was not raised in any form on the trial, and is evidently an afterthought. The defendants united in their answer, arid the only issue tendered therein was that the contract in question was induced by the fraudulent representations of the plaintiff. There was no allegation that the femmes covert were not parties to the contract, or were not bound thereby. The trial proceeded upon the assumption that all the defendants stood in the same situation in respect of their liability. The issue of fraud was the only issue litigated, and was the issue •upon which the case was decided. There was no finding, and no request to find, upon the point now presented. If this point had been raised, the plaintiff would have been in a position to demand damages against the other defendants on the ground of the imperfection of their title. The defendants jointly excepted to the findings of fact and law in the report of the referee. But none of the ■exceptions were directed to the point now made, that the contract, did not bind the female defendants.

We have recently decided that a judgment will not be reversed as to one of several parties appellants, although as to him erroneous in law, upon a general exception by all, in the absence of a special exception pointing out the error in the particular case. Murray v. Usher, Dec., 1889, 27 N. Y. State Rep., 928. The reversal by the general term cannot, we think, be sustained, and it is a satisfaction to know that but a small pecuniary interest is involved in our decision. The appeal by the defendants Frank W. and Robert P. Bonnie is destitute of merit.

The result is that the judgment of the general term should be reversed as to the appeal of the plaintiff, and affirmed as to the appeal of the defendants Frank W. and Robert P. Bonnie. This restores the judgment entered on the report of the referee. The . plaintiff should, also, have costs of one appeal in all courts Against the male defendants.

All concur.  