Martin v. Graham — 44 N.Y. St. Rep. 283

Majority

p. 283

George H. Martin, App’lt, v. Thomas Graham, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Promise—Implied.

As a tenant was about to pay rent to the assignee of her lessor, defendant, who was her friend, took the money saying he would keep it until the assignee was identified and then he could have it. Held, that the assignee had no right of action against defendant; that there was no consideration for any agreement to pay the money to the assignee when identified, .and no privity between them.

Appeal from judgment dismissing the complaint.

J. Stewart Boss, for app’lt; Hays & Oreenb'aum, for resp’t.

One Reuben P. Thompson rented to Susan McHenry the premises 27 East Twenty-fourth street, Hew York, for. one year .from May 1, 1889, at the yearly rent of $1,700 payable monthly. The rent payable for January, 1890, was to be $150. On the 31st of December, 1889, the plaintiff purchased the premises from Thompson. The lease was assigned ■ with the premises. The plaintiff applied to Mrs. McHenry for the rent and it was agreed that a deduction of ten dollars be made. Mrs. McHenry produced the money and was about to pay it over when the defendant reached over and took the money, saying that he was the friend of the lessee and would keep the money until the plaintiff was identified; that when the plaintiff was identified he Could have it

The trial court ordered a nonsuit. The claim of the plaintiff .against the tenant was neither paid or suspended. There was no •contract by the defendant that he would pay the rent due with the money given to him. The defendant could have been sued' by the tenant at any time for the $140 he held subject to identification of the plaintiff as the purchaser of the premises. Ho •cause qf action was therefore made out against the defendant. There was no privity of contract between him and the plaintiff; he made no written agreement. There was no consideration for

p. 284

any agreement upon defendant’s part to pay the money to plaintiff when identified. He merely held the tenant’s money to await the identification of the plaintiff.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.