103 A.D. 378 | N.Y. App. Div. | 1905
The plaintiff appeals from an order vacating an attachment issued in this action against “ The United Oil Cloth Company,” a foreign corporation. The motion to vacate was made upon the papers upon which the warrant of attachment was issued and specifically on the „ ground that those papers failed to disclose a cause of action. The learned judge at Special Term sustained the defendant’s contention. Upon an examination of the record we conclude that his decision was erroneous.
The plaintiff, a corporation, had negotiations with one Max Abrahams, who was engaged in business in New Jersey and New
Under the facts appearing in the papers it is evident that a novation was operated and that the defendant corporation was substituted in the place of Abrahams as the debtor of the plaintiff. It is true that a novation cannot be brought about without the release of the original party and the acceptance of a substitute, but it is not required that there shall be a release in writing or in any particular form, nor is the allegation of the complaint inconsistent with the theory of a novation. The complaint contains the statement that the goods were delivered under the contract to Max Abrahams and the said defendant. Some of them were delivered to Abrahams, but in this action a recovery may be had for what was delivered to the defendant at its request and upon its assumption of the contracts. It is not required that there shall be an express agreement for a novation or substitution of parties to a contract. It may be implied. (Seaman v. Whitney, 24 Wend. 260 ; DeWitt v. Monjo, 46 App. Div. 533.) The new relationship established between the parties to this action necessarily, as a matter of law, released Abrahams from personal responsibility upon the contracts. The defendant corporation took his place, the plaintiff assented to it and looked to nobody but the defendant for responsibility, and having thus acted, it relinquished all claim against Abrahams personally, and the novation would be a good defense to any claim made by the plaintiff against Abrahams.
We are, therefore, of the opinion that the order vacating the attachment should be reversed and the attachment reinstated, with costs to the appellant.
Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and attachment reinstated, with ten dollars costs.