159 N.Y.S. 256 | N.Y. App. Div. | 1916
We are of opinion that the correspondence between plaintiff and the new proprietors of the business of the Chadakoin Garage Company between March 15 and March 29, 1911, shows that plaintiff was aware of the transfer of the business by appellant Robbins and his partner to the new proprietors, and that plaintiff accepted the new proprietors as the persons with whom it would fulfill the contract in place of said Robbins, and that there was an intention on the part of plaintiff and of the proprietors to release said Robbins from further performance of the contract and to accept the new proprietors in his place as parties to the contract, and that thus there was a novation. (See Lane & Co. v. United Oil Cloth Co., 103 App. Div. 378.) We also think it should be held that if there was not a technical novation, then that the contract which plaintiff performed and under which the indebtedness for which this suit was brought was incurred, is one made by the new proprietors of the business by virtue of said correspondence and not the original contract made between plaintiff and defendant Robbins and his copartner. The 5th, 20th and 23d findings of fact of the referee’s report are disapproved. All concurred. Judgment as against the defendant Robbins reversed, with costs, and the complaint as to said Robbins dismissed, with costs.