3 Daly 233 | New York Court of Common Pleas | 1870
The plaintiff is entitled to a decree against Newell and Ludlow for the payment of the two quarters’ rent due May 1, 1867, with interest, deducting therefrom the $237.50 paid to the receiver. The liability of Newell is founded upon the lease, and that of Ludlow upon the agreement in writing entered into between him and Newell, which in equity created a trust for the plaintiffs’ benefit, which they are entitled to enforce. (Story’s Equity Jurisp. § 1244.) Indeed, if it were necessary, I would be entitled, upon the authorities, to hold that the plaintiffs could maintain an action against Ludlow directly upon the promise, as made by Ludlow to Newell for the plaintiffs’ benefit. (Burr v. Beers, 24 N. Y. Rep. 180; Lawrence v. Fox, 20 Id. 286; Scott v. Pilkington, 15 Abb. Pr. 280.)
If effect is given in equity to the agreement between Ludlow and Newell, and Newell is held amenable in equity upon his obligation as lessee, then there should be no decree for the payment of the rent against the petroleum company, although they allege-in their answer that the lease was taken by Newell in his own name for their benefit. If the plaintiffs can charge the petroleum company in equity, it would be upon the ground that they were the real party in interest and the one who
The suit may be discharged as to the remaining parties, without costs. As to Smith, he consented to such a disposition, and as to the Broadway Bank there was nothing in the complaint that made it necessary for them, to appear and contest the claim.' My decision as to the extent of the responsibility of Newell and Ludlow necessarily adopts the view of the application of the rents received by the receiver, which the plaintiff has presented. The receiver was not a necessary party, all those for whom he acted officially as the representative being parties to the suit.