Secor v. Law

4 Abb. Ct. App. 188 | NY | 1867

By the Court.

Grover, J.

[Remarks on an immaterial exception and an unavailable objection, are omitted.]

As to the first question, the referee found that, before the commencement of the action, the associates of defendant paid him their respective shares of the demand in suit, arid that he agreed with them, to pay and satisfy the plaintiffs therefor. This rendered him individually liable to the plaintiffs upon such demand, irrespective of the question whether he was so liable upon the contract. Lawrence v. Fox, 20 N. Y. 268. In that case, it was decided by this court that an action could be maintained upon a promise made by the defendant upon a valid consideration to a third, person for the benefit of the plaintiff, although the latter was not privy to the consideration. It was further held, in the same case, that a creditor could inaintain an action against a person who had borrowed money of his debtor upon a promise to pay the amount to the creditor. The present case falls directly within the principle of this case. Here, from'the facts found by the referee, the defendant was allowed this demand by his associates upon a settlement between them, and paid by them their respective shares, and in consideration thereof,-,promised to assume and settle the demand with the plaintiffs. The defendant was individually liable to the plaintiffs upon this contract.

The referee had the same power to allow an amendment as the court has upon a trial. Code of Pro. § 272. The court (§ 173) has power, upon trial, to amend by inserting additional allegations, and to conform the pleadings to the proof. These sections authorize the amendment allowed by the referee.

All the judges concurred.

Judgment affirmed, with costs. ,