36 Barb. 576 | N.Y. Sup. Ct. | 1861
By the Gourt,
The decision of the county court in this case, reversing that of the justice, I think, was right, and is sustainable, within the cases of Barnes v. Perrine, (9 Barb. 210; S. C., 15 id. 249, and 2 Kern. 18;) McAuley v. Billenger, (20 John. 89;) Farmington Academy v. Allen, (14 Mass. Rep. 172;) Amherst Academy v. Cowles, (6 Pick. 427;) and Religious Society of Whitestown v. Stone, (7 John. 113.) The defendant, with others, made his subscription to raise an amount sufficient to induce the Wayne county Baptist association to establish and found a collegiate institute, to be located in his own village, at Newark, in said county; which subscription was also used to induce the board of regents to grant a charter for such institution, in which charter the defendant was named as one of the trustees of said corporation. The in
I think it is to be regretted that the more liberal ground suggested by Chancellor Walworth in Hamilton College v. Stewart (2 Denio, 416) of mutual promises; or the ground suggested by Chief Justice Eelson, in the same case, (Id. 408,) was not sustained by the court of appeals, in that case. (1 N. Y. Rep. 582.) I am by no means satisfied that in this country, where all our religious, educational and charitable institutions are founded by voluntary associations, and dependent upon private liberality, the personal benefit to be derived from the erection of a church edifice for worship by himself and family, or the erection of an academy or other institution of learning in his immediate neighborhood, for the education of his children, are not works involving a sufficiency of private interest to every citizen, and of pecuniary benefit, to maintain a promise expressly and distinctly made, received and acted upon in the erection of buildings for such purposes. But the view is clearly repudiated, in most of the
But I think the subscription in this case, and this class of subscriptions generally, can be based upon another ground, which to me seems impregnable. I think the subscription here should be regarded as a conditional promise or proposition to pay to the plaintiff the sum of $100 towards the expense of erecting an institution of learning in the manner, and upon the terms, and of the description specified in the subscription paper signed by the defendant and others, in question in this action. The subscribers to that paper do therein severally agree well and truly to pay the several sums set opposite their respective names, to the treasurer of a board of trustees; “ said money to be 'expended in the erection of an institution of learning, to be built of brick, at least three stories high, and capable of accommodating 500 pupils,” &c., and “ located at Newark.” This subscription paper, I think, means and is, in substance and legal effect, the same as though it read as follows : “We the subscribers severally agree with the Wayne and Ontario Collegiate Institute, that in consideration that the said corporation will proceed to erect a building for an institution of learning, at Newark in the county of Wayne, capable of accommodating 500 pupils, in manner and style as herein particularly specified, we will pay to such institution the sum set opposite our respective names; provided that not more than one fourth is called for in one year’s time.” This is, in substance, the proposition of the defendant as one of the subscribers to these papers. It is a conditional bargain or agreement on his part, binding when accepted, adopted and acted upon by the plaintiff.
promises or propositions to pay money upon condition, or upon the happening of some event, or the doing
Welles, Smith and Johnson, Justices.]
The judgment should be affirmed.