Barrett v. Parent — 68 A.D. 165

Majority

p. 165

Henry R. Barrett, Respondent, v. Mary A. Parent, Appellant.

Headnote

The receipt of a check for an award in condemnation proceedings—it is a sufficient consideration to sustain a promise, made by a client to her attorney, to pay rent, for the premises occupied by the client after their condemnation.

A woman whose lands were taken hy the city of New York by proceedings irs invitum remained in possession of the property after the title had vested in the city, and agreed to pay the city rent therefor. Subsequently she employed an attorney to collect the award, which had been deposited in a trust company. The trust company gave the attorney a check for the amount of the award upon his promise to see that his client paid the rent. The attorney informed his client of this agreement when he gave her the check, and she promised to pay him whatever he should pay the city for the rent.

In an action brought by the attorney to enforce such promise,

Held, without deciding that the client was liable for rent to the city, that the receipt of the check by her furnished a sufficient consideration for her promise, to pay the rent paid by her attorney.

Appeal by the defendant, Mary A. Parent, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of April,, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Z. Melville Knowles, for the appellant.

Henry R. Ba/rrett and M. S. BuoTcbee, for the respondent.

Lands of the defendant were taken by the city of New York, under an act providing for additional water supply facilities to the city, and there was awarded tó her the sum of $14,000, which, with other awards, was deposited by the city in a trust cbmpany. Having remained in possession of the property after the title thereto vested in the city, a claim for rent from her was made by the city, and the defendant signed an agreement to pay the city rent therefor. When the award became payable the trust company gave a check therefor to the plaintiff, who had been retained by the defendant to collect the amount, upon .the condition and his promise that he would see that the defendant paid the rent. The plaintiff so informed the defendant when he gave her the check, and she promised to pay him whatever he should pay the city for the rent. He paid the rent, $216, to the city, but the defendant refused to repay him.

The defendant moved for a dismissal of the complaint, or for the direction .of a verdict, and we are to decide simply whether there was any evidence of a valid promise on the part of the defendant to repay the plaintiff. Of this there is sufficient evidence to justify the jury in finding.that it was made.

But the defendant contends that she was not liable to pay rent to the city. It is not necessary to consider that, question in the present action. It might avail in an action to which the defendant and the city were parties.

The plaintiff, as attorney for the defendant, had received from the trust company a check upon his agreement to see that the defendant paid the rent whenever the amount should be ascertained. The check was delivered by him to the defendant upon her promise to pay him whatever he was called upon to pay by virtue of his promise to the city. The receipt of the check by the defendant under such circumstances furnishes a' sufficient consideration for her promise to pay, and the court was not in error for submitting the question to the jury on that theory.

The judgment and order should be affirmed.

All concurred.

Judgment and order affirmed, with costs.