9 Daly 381 | New York Court of Common Pleas | 1880
[After stating the facts as above.]—In the foregoing statement of the case I have not attempted to embrace all the testimony relating to questions raised upon this appeal, but have simply confined myself to such as presented the question which it seems to me is decisive of this appeal.
By the agreement of assignment Mulry assumed debts which had been incurred in the execution of the contract to the extent of ten thousand dollars and no more, and that amount he paid out in a very few days after the assignment, without being able to ¡3ay the whole amount of such debts.
The creditors remaining unpaid had no right of action against Mulry after he had paid under the assignment all that he had agreed to pay. '
It is true that no specific creditors are named in the assignment, but a specific class is named and the assignee expressly limits his liability to the payment of those claims to a certain sum, and I know of no rule of law which prohibited him from so doing. He was not bound to pay all the debts incurred in the completion of the contract if the assignment was not worth such a sum, and no pai’ol evidence can engraf t upon that assignment any greater liability than has been assumed by the assignee. Even if the assignee did say that he would pay the plaintiff’s claim, not being under any obligation to do so, not having received any consideration for the promise, it was not binding upon him. I have failed to see the application of the numerous authorities cited by the counsel for the respondents, as the propositions which they are cited to sustain do not arise in this case.
Charles P. Daly, Ch. J., concurred.
Judgment reversed and new trial ordered, with costs to abide event.
