Riordan v. First Presbyterian Church — 3 Misc. 553

Majority

p. 553

Riordan v. The First Presbyterian Church of Tremont.

(City Court of New York

General Term,

May, 1893.)

Headnote

In consideration of the transfer to it of certain real estate, defendant agreed with one W. “to pay and discharge any and all charges and expenses for necessary attendance in case of the illness of said W.” In an action by plaintiff to recover the value of services rendered W. in her illness, held, that the agreement in question inured to the benefit of plaintiff, and in the absence of evidence that defendant furnished or offered to furnish such attendance to W. as plaintiff rendered, she had the right to engage plaintiff for that purpose and defendant became liable therefor.

Appeal by defendant from a judgment entered on verdict in favor of plaintiff. The opinion states the facts.

/S'. A. (& D. J. Noyes (Ernest Hall, of counsel), for defendant (appellant).

Edgar J. Nathan, for plaintiff (respondent).

On February 21, 1887, the defendant made an agreement with one Ann Wilson, therein reciting the conveyance by her to it of certain real estate and in consideration of such transfer, among other things, agree “ to pay and discharge any and all charges and expenses for necessary attendance in case of the illness of said Ann Wilson.”

At the time she was eighty-seven years old, was sick, and continued to be so until the time of her death, August 11,1891.

During that time plaintiff attended her, and in tliis action seeks to recover the value of such services from defendant, by virtue of the agreement aforesaid. The jury rendered a verdict for the plaintiff for $810.

It was a question of fact for the jury to decide, whether or not Ann Wilson was ill from February 22, 1887, to August 11, 1891, and whether the services rendered by plaintiff were necessary and the charges therefor reasonable.

They decided that issue in plaintiff’s favor and there is abundant evidence to sustain that finding.

The agreement mentioned inured to the benefit of plaintiff, in fact it was made for the express purpose (among other

p. 554

things) of protecting any person rendering Ann Wilson necessary attendance in case of her illness.

It is not contended that defendant furnished, or offered to furnish, such attendance to her, and upon its failure to do so she had a right to engage any person for that purpose, and defendant became liable to such employee for the value of the services rendered within the limitation above stated.

It is the settled law of this state that an agreement made on a valid consideration by one with another to pay money to a third can be enforced by the third person in his own name; the fact that the liability assumed is not in existence at the time of the making of such agreement, or that the person to be benefited is not then known or privy to the agreement, does not affect this rule. Coster v. Mayor, etc., 43 N. Y. 399 .

This case falls within that ruling, so plaintiff had a right to commence and maintain the same.

Finding no error, the judgment is affirmed, with costs to respondent.

Ehrlich, Ch. J., and FTewburger, J., concur.

Judgment affirmed.

Cases cited

Coster v. Mayor, Aldermen & Commonalty 43 N. Y. 399 N.Y. 1871-01-24 p. 554