14 A.D.2d 853 | N.Y. App. Div. | 1961
“ It is well settled that before a third party can enforce a contract in his favor it must clearly appear that the contract was made and intended for his benefit. * * * The agreement under which the third party claims must clearly express an intention to assume a duty directly to him.” (10 N. Y. Jur., Contracts, § 239, pp. 160, 162.) The written contract here, as we construe it, was not one whereby the appellants Lodmer and Wolf intended to or did assume any obligation directly to the creditors of Bal Dolls, Inc. The contract of the said appellants, upon its face, appears merely to have been intended as an indemnity and save harmless agreement in favor of Valentine Dolls, Inc. This being so, plaintiff, a creditor of Bal Dolls, Inc., may not recover upon the contract as a third party or donee beneficiary thereof. (See Snyder Plumbing & Heating Corp. V. Purcell, 9 A D 2d 505, 508; Skinner Bros. Mfg. Co., v. Shevlin Eng. Co., 231 App. Div. 656, 659, affd. 257 N. Y. 562; Leary v. New York Cent. R. R. Co., 212 App. Div. 689, 691; Weinbaum v. Algonquin Gas Transmission Co., 20 Misc 2d 276, 279, affd. 285 App. Div. 818; also French v. Vix, 143 N. Y. 90, 94; National City Bank v. Berwin, 240 App. Div. 550, 553.) Settle order on notice. Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.