majority"> Miller, J.

The question whether the deed executed by the plaintiff and her husband, and delivered to the defendant, was intended as a mortgage, was a question of fact, in regard to which the testimony was ' conflicting. The case is not one where the undisputed facts are of a character which stamp the transaction on its face, so that oral testimony may be disregarded entirely; and in view of all the circumstances *507 it cannot fairly be claimed that there was such a preponderance of evidence in favor of the plaintiff as demanded a reversal of the decision in this respect, or that the finding of the court upon this branch of the case was without evidence to support it. The testimony bearing upon the question is fully and elaborately discussed in the opinion of the General Term, and sufficient grounds are there stated for upholding the decision of the trial court.

The liability of the plaintiff to the defendant for the rent of the premises under a demise made between them was also a question of fact. The defendant and his wife testified to the agreement and to the payment of rent. The plaintiff denies that there was any such agreement or any rent paid. The defendant, upon his cross-examination, testifies that in his answer he swore that he leased the premises to the plaintiff, and that in the affidavit in proceedings instituted to dispossess the parties he swore that he leased the premises to Cornelius Westervelt, and that both these affidavits are true. Here is an apparent and clear contradiction which is not explained; and if there was no other evidence that the premises were leased, there would be good ground for claiming that no devise was established. But, as we have seen, the defendant’s wife testifies to the hiring and the payment of rent; and although the plaintiff contradicts her evidence, as was said in the opinion of the General Term, the proof left this portion of the case in a position which the court could decide either way without violating any principle of law applicable to the ease.

The objection that the plaintiff was a married woman and therefore not liable upon the demise, if any was made, is answered: First. By the fact that the plaintiff did not allege, in her reply to the defendant’s answer, that she was a married woman, and resist the defendant’s demand upon that ground. Second. Evidence was given upon the trial, without objection, to show that a demise existed, and to contradict that fac<"-. The existence of the agreement alone was controverted, and no such defence was interposed or objec *508 tion taken, that the plaintiff being a married woman was not liable. This was the only issue raised by the counter-claim and the reply, and that question alone was litigated. The defendant might, if the point had been taken, have given additional evidence to show plaintiff’s separate liability, notwithstanding her coverture; and as the case was tried is precluded from now urging any such objection, if it is at all available. Third. Conceding that the question is in the case, however, as the leasehold estate was acquired by the plaintiff separately, there is no sufficient reason why it should not be considered as her separate property, and she be made liable for the amount of rent agreed upon. (See Prevot v. Lawrence, 51 N. Y., 219, 221; Frecking v. Rolland, 53 id., 422 ; Maxon v. Scott, 55 id., 247.)

The question whether a counter-claim for the rent was lawfully presented was not raised upon the trial, and should have been presented by demurrer or by an objection at the trial. (Collins v. Suau, 7 Robt., 94.) It cannot, therefore, be now considered.

The j udgment of the General Term should be affirmed.

All concur.

Judgment affirmed.

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