116 N.Y.S. 437 | N.Y. App. Div. | 1909
The defendants in this action made and delivered their certain bond or obligation to the plaintiff on the 29tli day of April, 1903, the condition of the bond being that “if the above bounden obligors, their heirs, executors, and administrators, or either of them, shall well and truly pay, or cause to be paid, promptly, unto the said President and Fellows of Harvard College, * * "" the whole of such sum or sums of moneyas shall become due to the said President and Fellows from Henry Kempner, * * including all such sums as shall become due to said President and Fellows for board or gas, or for money advanced therefor, * * * together with such sums as may be charged to him * * * for the rent of any room which may be assigned to him, in accordance with his application, before he becomes a student in the University; then this obligation shall be void,” etc. Henry Kempner made his application and entered the university in the fall of 1903, and remained a student up to June, 1906. On the 28th day of February, 1906, in accordance with the usages of the university, Henry Kempner entered into a written contract with the plaintiff
"We are not informed upon what ground the learned court based its conclusion, but we are of the opinion that it was error to dismiss the complaint. The bond in evidence clearly shows a contract between the plaintiff and defendants; it ivas entered into for the purpose of securing to the plaintiff the payment of the expenses of Henry Kempner during his college course, and the. whole defense is a quibble. The young man, evidently following tile usages of the university, and intending to continue his studies, entered into a .contract for his room for the academic year of 1906-1907, just as the bond fairly contemplated should be done, and the mere fact that for some reason he was prevented from returning does not
It is not necessary to discuss the suggestion that plaintiff, in accepting a surety bond, is within the provisions of the General Corporation Law of this State, or that the defendants have any'standing to raise the question of Henry Ketnpner’s infancy. The very object t of the bond was to secure the plaintiff against the contracts of infants; was to provide against losses due to irresponsible students. The defendants undertook to say that they would see that his contracts were carried out, within the limits of his obligations as a student of the university, and if Henry Kempner made a contract within the scope of the authority conferred under the bond, they are bound to meet the obligation. ¡'
The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.
Jenes, Gaynor, Bdrr and Kioh, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.
See Laws of 1892, cliap. 687, § 15, as amd. by Laws of 1901, chap. 538, and Laws of 1904, chap. 490.— [Rep.