26 N.Y.S. 38 | New York Court of Common Pleas | 1893
For a valid consideration, the defendant covenanted with Ann Wilson to “pay and discharge any and all charges and expenses for necessary attendance in case of illness.” Upon allegation and proof of necessary service rendered to Ann Wilson in her illness, the plaintiff has recovered a judgment against the defendant; and the question is whether the defendant’s covenant with Ann Wilson so inured to the benefit of the plaintiff as to support an action by her against the defendant.
Lawrence v. Fox, 20 N. Y. 268, (decided in 1859,) is commonly cited to the proposition that a promise by one for the benefit of another will sustain an action by that other; but, so long before as 1806, the point was expressly ruled in Schermerhorn v. Vanderheyden, 1 Johns. 139, was reaffirmed in Barker v. Bucklin, 2 Denio, 45, and was recognized and approved by repeated adjudications. Delaware & H. Canal Co. v. Westchester County Bank, 4 Denio, 97; Hale v. Boardman, 27 Barb. 85; Judson v. Gray, 17 How. Pr. 296; Therasson v. McSpedon, 2 Hilt. 3. Since Lawrence v. Fox, the principle has been applied by the courts of New York in a multitude of cases, and it must now be regarded as fundamental in the jurisprudence of the state. Barlow v. Myers, 64 N. Y. 41, 44. Indeed, it is the prevalent law of the Union. Hendrick v. Lindsay, 93 U. S. 143, 149, and cases collected in note to Schermerhorn v. Vanderheyden, 3 Amer. Dec. 305, 306. Whatever of technical doubt or difficulty may have hindered its acceptance by the courts has been dissipated by the provision of the Codes authorizing an action by the real party in interest. Pom. Rem. § 139. The fact that the promise is evidenced by a specialty, instead of a simple contract, is ineffectual to render it unavailable to one not a parly or privy. Coster v. Mayor, etc., 43 N. Y. 399.
Accepting the rule, then, as inveterate and unimpeachable, the point for adjudication is whether the case be within its operation. We are not unmindful of the admonition by the court of appeals against any extension of the principle beyond the scope of its legitimate application. Wheat v. Rice, 97 N. Y. 302; Lorillard v. Clyde, 122 N. Y. 498, 25 N. E. 917; Durnherr v. Rau, 135 N. Y. 219, 32 N. E. 49. But it is clear to demonstration that the conditions essential to the operation of the rule as prescribed in Lawrence v. Fox are present in the case at bar, namely, a liability of Ann Wilson to the plaintiff, and a promise by the defendant, on a sufficient consideration, to discharge that liability. True, in Lawrence v. Fox, the debt of the third person to the plaintiff, which the defendant promised that person to pay to the plaintiff, was then in existence and ascertained, whereas here the claim of Sara Riordan against Ann Wilson accrued after defendant’s promise. But that this diversity is ineffectual to avoid the application of the rule is settled by the court of appeals. Coster v. Mayor, etc., 43 N. Y. 399, 411;
Again, defendant objects that the plaintiff is allowed compensation for the attendance of members of her family upon Ann Wilson. If such were the fact, the judgment would not be invalidated; for services to Ann Wilson on behalf of the plaintiff by members of
We have accorded all possible consideration to the elaborate argument of counsel for the appellant, and our conviction still is that the judgment is correct. Judgment affirmed, with costs. All concur.