dissent">J. F. Daly, J.,

dissenting.—It seeins to me that the judgment in this action should be reversed. The agreement of the defendant, Euell, taking the statements of plaintiff’s witnesses as true, was a mere naked contract, -without consideration, to pay the debt of a third party and clearly within the statute. It was made at the time he entered into the copartnership with his co-defendant, Semmler, but the mere contribution to the firm by Semmler of his stock Avas not a delivery of property by him to Euell, out of which the latter Avas to satisfy the plaintiff’s debt so as to bring the case within the spirit of Lawrence agt. Fox (20 N. Y., 268) and similar cases ; but was property put into the copartnership agreement and for copartnership purposes. This property was liable to division with the other assets on dissolution, and a share of it to be returned to Semmler. It was not ah irrevocable conveyance to Euell for the purpose of paying the old creditors; and the promise of the latter, it seems to me, is not to be distinguished in principle from that discussed in Garnsey agt. Rogers (47 N. Y., 233).

There a person taking a mortgage on real property, as security for a loan, agreed by a stipulation in his mortgage to pay a prior mortgage given by his debtor to a third party. It was held that the promise was not made for the benefit of the prior mortgagee, but only for the benefit of the mortgagor, *39and differs from a similar stipulation, in an absolute conveyance. In this case it is clear from the evidence that the promise of Euell was not made for the benefit of this plaintiff and the other creditors of Semmler, but for Semmler’s and his own benefit (in the copartnership) only. “Hr. Semmler said he would pay the old debts for the sake of getting relieved and of not getting pushed ” (Semmler’s testimony, p. 29).

There is no testimony whatever that Semmler asked Euell to pay the old debts for the sake of the old creditors, or that Semmler contributed the property to the firm or entered into the copartnership upon any agreement that the old creditors should be paid. The agreement of Euell seems to have been made for his own and Semmler’s convenience, “ for the sake of being relieved and of not getting pushed ” in their new business. Even if Semmler, during the copartnership, could have enforced this agreement against Euell (47 N. Y., 243), the creditors could not unless made for their benefit. The subsequent dissolution of the copartnership and the agreement between Semmler and Euell (Case, p. 68) whereby the defendant, Euell, takes all the assets, does not help the plaintiff’s case, there being no agreement in it to pay the old individual debts of Semmler, and it being made upon the consideration set forth in. it—“ one dollar and moneys paid to and for (Semmler) by said Euell, and other valuable considerations.”

The judgment should be reversed.

Judgment affirmed.

Note.—A motion was made at the succeeding general term for a reargument or leave to go to the court of appeals, and the same court refused to grant either application; all the judges this time agreeing that the former judgment of affirmance was correct.

Citation profile

How this case has been treated — in progress