
    Samuel T. Barnes, App’lt, v. Edward Ryan, Resp’t.
    
      Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Contract—Consideration.
    In consideration of the discontinuance of an action to recover damages for obstructing the flow of water in a ditch, defendant agreed to pay plaintiff a certain sum within thirty days and open the ditch. In an action to recover said sum, Held, that it was not material whether the original claim was well founded, and that the settlement of the action furnished a good consideration for the promise to pay.
    2. Same—Statute of frauds.
    Such promise was not within the statute of frauds.
    Appeal from judgment of special term, affirming the judgment of a justice of the peace in favor of defendant, the county judge being disqualified to act.'
    
      H. S. Haff (George H. Beckwith, of counsel), for app’lt; W. H. Dunn, for resp’t.
   Mayham, P. J.

Appeal from a judgment entered upon the decision of a judge at special term, on an appeal pending in the Clinton county court from the judgment of a justice of the peace, and certified to the supreme court by the county judge on account of his disability to bear the same.

The action was prosecuted in justice’s court to recover fifty dollars, which the plaintiff alleged that the defendant agreed by paroi to pay him in settlement of a disputed claim made by the plaintiff against the defendant for ■ obstructing the flow of water in a ditch which passed through the adjoining lands of plaintiff and defendant

The complaint alleged the commencement of an action by the plaintiff against the defendant, and that in consideration of the plaintiff’s stopping the action, the defendant agreed to pay him, within thirty days, fifty dollars and open the ditch.

The answer is a denial; that the promise was void for want of consideration, and also under the statute of frauds; also set up the statute of limitations.

The undisputed evidence showed that the plaintiff claimed damages of the defendant for filling up the ditch and threatened litigation, and that the defendant agreed, if plaintiff would not prosecute his pretended claim, he would within thirty days pay him on such doubtful or disputed claim fifty dollars.

Upon these undisputed facts did this promise constitute a valid cause of action? We do not think that the question of the validity of the plaintiff’s claim for damages for the flooding of his land can properly be considered in answering that question.

The real question turns upon the settlement of or discharge by the plaintiff of a pretended claim, which was disputed by the defendant. It is not necessary that the disputed claim should be a valid one, which the plaintiff could enforce by action.

In White v. Hoyt, 73 N. Y., 514, the court say: “It is not necessary to uphold a promise, based upon the surrender or composition of a claim, that it was a valid claim, one that could be enforced by law. A promise made upon the settlement of a dispute and to prevent litigation is made upon a good consideration. The settlement of a doubtful claim will uphold a promise to pay a stipulated sum, or do any other lawful act.”

And the court cites numerous authorities from judicial decisions and elementary writers, to sustain the above proposition. In Stewart v. Ahrenfeldt, 4 Denio, 190, the court say: “The settlement of a suit or the compromise of a doubtful claim is a good consideration for a promise to pay money, and where an action is brought upon such promise it is no answer to show that the first suit could not have been maintained; or that the claim was not a valid one. When the parties meet on equal terms and adjust their differences, both are concluded from further litigation of the matter.”

In Russell v. Coole, 3 Hill, 504, it was held that a note given upon the settlement of a doubtful claim preferred against the maker will be upheld as founded upon sufficient consideration, without regard to the legal validity of the claim.

In such case it matters not on which side the right ultimately turns out to be; the court will not look beyond the compromise-See, also, 28 U. Y., 103; 61 id., 625; 44 Barb., 641; 44 Hun, 349; 8 St. Bep., 841. In the case at bar there was a disputed claim, or controverted claim, made by the plaintiff against the defendant growing out of the alleged damming of the ditch.

It is not material now to inquire whether the claim was, or was not, well founded, or whether, as an original proposition, an action could be maintained upon it. Upon that subject the court cannot now speculate. The undisputed evidence is, that, to settle that dispute, this agreement was made, and that settlement furnished, within the authorities cited, a good consideration for the promise to pay this money.

That promise was not within the condemnation of any of the provisions of the statute of frauds, and the action being founded upon the promise, which grew out of the settlement, and not out of the cause of action, or alleged cause of action, in dispute, which was settled, the statute of limitations had not attached to that promise when the action was commenced.

We are, therefore, of the opinion that a cause of action was made out by the proof, and was not successfully defended.

The judgment of the justice and of the special term must be reversed, with costs.

Putnam and Herrick, JJ., concur.  