17 How. Pr. 287 | N.Y. Sup. Ct. | 1859
In this case it does not appear that any promise was made by the defendant’s testator to pay his subscription, after the plaintiffs were actually and legally incorporated. But it does appear that after the society had made a preliminary organization, and after the articles of association had been executed, the testator frequently told those in charge of the erection of the church edifice to go on and finish it and he would pay his subscription. This was clearly a sufficient waiver of the conditions in the original subscription. And the fact that the society, on the faith of this
Roosevelt, Ingraham and Pratt, Justices.]
The only remaining question, of any moment, is, that the plaintiffs had no legal existence at the time of the testator’s making the promises upon which the action is predicated. It is claimed that such being the fact, the plaintiffs could not be a pai'ty to the contract. But it has been repeatedly held that a subscription made before the corporation was in esse, with a view to a future incorporation, was binding, and that a corporation subsequently organized could sustain an action upon it. (Hamilton and Deansville Plank Road Co. v. Rice, 7 Barb. 157. Stanton, Pres’t, v. Wilson, 2 Hill, 153. Trustees of Farmington Academy v. Allen, 14 Mass. Rep. 172.) In this case the promises were made for the benefit of the society thereafter to be incorporated. All parties contemplated the subsequent incorporation of the society, and although the promises were made just before such incorporation,- yet a portion of the work was done afterwards. Upon such incorporation, therefore, the society became vested with the claims against those who had agreed to pay for erecting the church edifice. I think, therefore, that the judgment should be affirmed.
Judgment affirmed.
