I concur. The principle of Ryan v. Dox, 34 N. Y. 307, and Carr v. Carr, 52 N. Y. 251, has no application to this case. In the cases cited, the party in whose favor the agreement to purchase was made had an interest to protect at the sale, and the purchaser under this agreement became merely a mortgagee. This distinction is well pointed out in Bauman v. Holzhausen, 26 Hun, 505, decided by the general term of this department. Here the plaintiff had no interest in the property sold. She had not joined in the assignment, and her dower could not be divested by the sale. To justify a decree in her favor, she was bound to show such a part performance as would take the case out of the statute of frauds. This has not been found by the trial court, the decision being based solely on the original contract. The judgment, therefore, should be reversed, and a new trial had.