
    Harby W. Bell, Appellant, v. John Pfadenhauer and George Diemer, Respondents.
    
      Agreement to pay a judgment and to receive an assignment themof—want of consid-. eration —part payment under an agreement not sustained Try a consideration.
    
    The fact that parties, agreeing to pay a judgment against a third party, not a lien on their land, are to receive an assignment of the judgment upon making such payment, does not constitute a consideration which will support the agreement to pay the judgment.
    The payment of moneys under a contract, which is without consideration as to the parties making the payment, will not preclude such parties from, asserting the want of consideration as a defense to an action brought against them to recover the balance of the sum mentioned in the contract to be paid by them.
    Appeal by the plaintiff, Harry W. Bell, from a judgment of the County Court of Kings county in favor of the defendants, entered in the office of the clerk of the county of Kings on the 9 th day of January, 1902, upon the dismissal of the complaint by direction of the court after a trial before the court and jury.
    
      Theodore B. Gates, for the appellant.
    
      Thomas C. Whitlock, for the respondents.
   Woodward, J.:

The plaintiff was nonsuited in this action, and is entitled to a liberal construction of the evidence in his favor, but a reading of thé case as it was presented to the learned court below convinces us that Ho error was committed in the disposition which has been made. Upon the case coming before this court on demurrer we held that the complaint set • forth a cause of action, and we think there is no room for questioning the correctness of that decision; the trouble is that the facts proved negative the allegations of the complaint in several very important particulars. The amended complaint then under review alleged a copartnership existing between the defendants, residents of Kings county, and that on “ September 1st, 1897, plaintiff duly recovered a judgment against one Elka Wiedhopf for the sum of $175.93 and same was duly entered and filed in the office of the Clerk of Kings County, and said judgment became a lien on certain real estate situate on Cooper Street, Brooklyn Borough, title to which was taken by defendants and one Lina Muller, to whom it was conveyed under the firm name of Pfadenhauer, Muller & Co., who thereupon assumed the debts owed by said Elka Wiedhopf as by reference to the record of said conveyance When produced will more fully and at large appear.” The evidence shows that the judgment of the plaintiff never became a lien upon the premises on Cooper street;. that the transfer to the defendants and Mrs. Muller was made and recorded before the entry of the plaintiff’s judgment, and as there is no suggestion of any fraud in the transaction, it is certain that there- was no lien upon the premises in favor of the plaintiff. The complaint then alleged a compromise by which the amount of this judgment was fixed' at one hundred and fifty dollars, seventy-five dollars of which was paid by these defendants, who entered into an agreement to pay the note of Mrs. MuHer for a like amount if the same was not paid within thirty days from its date. This payment, it was alleged, was to be in “ consideration of value to them and assignment of said original judgment to them by plaintiff;” and we held that such assignment was not a condition precedent. But the evidence shows that the agreement was not based upon any consideration of value to the defendants acknowledged in such instrument, nor growing out of the transaction,- for the plaintiff’s judgment not having been a lien upon the property transferred to the defendants and Mrs. Muller, there was no obligation on the part of the latter, and there could be no consideration for the agreement to pay the note, because nothing which the plaintiff might have done could have disturbed the legal rights of the defendants and Mrs. Muller in the property. The plaintiff does not. suggest that there was anything contrary to law or equity in the transfer; his theory is that it was entirely proper, but that in some manner he has an equitable lien upon the premises which were -thus lawfully transferred, and that this equitable lien constitutes a consideration for this promise of the defendants •to see that the note of Mrs. Muller was paid. Mrs. Muller owed him nothing; the defendants owed him nothing, and it does not even clearly appear that the materials, which furnished the foundation of the plaintiff’s original claim, were provided for the houses upon the Cooper street property, so that the evidence fails; to support the cause of action set forth in the complaint. The fact that the defendants paid seventy-five dollars upon a mistaken theory does not justify holding them to the payment- of yet more money upon an agreement which is without consideration of any kind. The assignment of the original judgment, which is to follow the payment of the money, is not a consideration for entering into the agreement, and the judgment not being a lien upon the premises transferred, there is no legal obligation on the part of the defendants to pay the claim. (See Bradt v. Krank, 164 N. Y. 515, 521.)

The judgment appealed from should be affirmed, with costs.

Goodrich, P. J., Bartlett, Hirsohberg and Junes, JJ., concurred.

Judgment of the County Court of Kings county affirmed, with costs.  