
    The Twenty-third St. Baptist Church of New York, Applt, v. Jacob W. Cornwell, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    Subscription-—Executory agreement.
    The fact that a church corporation erected a new edifice and incurred large expense in reliance upon subscriptions will not justify the recovery of a sum subscribed by one who dies before any expenditure was made or any work begun.
    Appeal from judgment of the superior court of the city of Hew York, affirming judgment dismissing complaint on the merits.
    Action to recover the sum of $5,000 subscribed by defendant’s testatrix towards a church edifice fund then being raised by plaintiff, on condition that the aggregate of the subscriptions should not be less than $50,000.
    
      Edward S. Clinch, for app’lt; Flamen B. Candler, for resp’t.
    
      
       Affirming 18 N. Y. State Rep., 878.
    
   Finch, J.

It is an insuperable barrier to a recovery by the plaintiff that the subscription of Mrs. Weeks to the fund for the erection of a new church building was merely an executory gift, unsupported by any consideration. The doctrine settled in the recent case of Presbyterian Church v. Cooper, 112 N. Y., 517; 21 N. Y. State Rep., 503, is decisive upon the facts here presented. Since the subscriptions of several furnished no consideration for the promise of anyone; since the decedent did not request the corporation to build a new edifice, and the church did not promise that it would; since no endeavor to obtain subscribers was occasioned by the expressed wish or direction of testatrix, but began and was continued irrespective of it; since these facts exclude the existence of a consideration at the date of the promise the plaintiff is compelled to rely, and does rely, upon one originating later. The contention is that the church corporation erected its new edifice and incurred the large cost of its construction in reliance upon these subscriptions, and so in the end, if not in the beginning, a consideration arose to support the promise. That may happen where the expenditure can be said to have proceeded with the knowledge and assent of the subscribers; but Rere, before any expenditure was made or any work was begun, Mrs. Weeks died. Her gift was unexecuted at her death and revoked by that event, and no after action of the church corporation could change or affect the result. Her executors could not create a new liability where none existed before, and liad no authority to bind the estate by an assent to the work of construction, or to convert an invalid promise of the testatrix into an enforceable liability of her estate. The promise died when she died, and was merely a good intention which did not survive her.

This view of the case makes it needless to discuss the other questions with which the argument was largely occupied.

The judgment should be affirmed, with costs.

All concur.  