
    Sender Jarmulowsky, Appellant, v. Michael Susskind, Respondent.
    (Supreme Court, Appellate Term,
    April, 1907.)
    Contracts — Parties and persons by whom or against whom enforceable— In general — One not a party nor the person for whose benefit the contract was made.
    Where two persons form a partnership and one agrees to pay the other a sum of money in consideration of the latter’s contributing his established business, and it is provided that the latter may terminate the partnership by paying the money to a third party from whom the former borrowed it to enable him to enter into the copartnership, but the latter afterwards throws out his partner without paying the money, the lender cannot maintain an action against him therefor, the right of action under the partnership agreement residing in the other partner, at whose suit the copartnership affairs can he fully adjusted and the rights of all parties conserved.
    Appeal by plaintiff from a judgment in favor of defendant dismissing the plaintiff’s complaint, rendered in the Municipal Gourt of the city of Mew York, fifth district, borough of Manhattan.
    Feltenstein & Rosenstein, for appellant.
    Rosenbluth & Silverman, for respondent.
   Erlanger, J.

In February, 1905, the defendant Suss-kind and one Herman Markel, by written agreement, formed a copartnership under the firm name of Michael Susskind & Co., which was to continue for three years from February 23, 1905. The business to be conducted was real estate and brokerage. The defendant contributed “ his already established business,” and Markel contributed five hundred dollars, four hundred and seventy-five dollars of which sum was advanced by plaintiff for Markel’s account. Markel was given the privilege of drawing fifteen dollars per week “ on account of the profits to be derived during the term until September 30, 1905, and after that time the profits shall be equally divided between both partners.” It wias further agreed that in the event the said Michael Susskind, for any reason whatsoever, desires to terminate this article of agreement within three months from the date hereof the said Michael Susskind shall have the right to pay the money received, namely five hundred dollars, unto its former owner S. Jarmulowsky in person, and then this contract shall be null and void, and terminated, and that the said Herman Markel herewith releases the said Michael Susskind of all claim or claims he may have against him and discharges Michael Susskind of any claims whatsoever, upon payment by the said Michael Suss-kind to the said Herman Markel of one third of the profits derived after deducting the total amount of the weekly payments to the said Herman Markel.”. At the end of the written articles a receipt is endorsed signed by the defendant acknowledging that four hundred and seventy-five dollars was paid by plaintiff “ in compliance with above contract and for the purpose of carrying out the said contract.” Markel received his weekly allowance up to within a few weeks before the expiration of the three months specified in the agreement for its termination, when the partners quarreled and as is claimed the defendant threw Markel out.” Plaintiff demanded from the defendant, after this event occurred, the return of the money which he advanced for the benefit of Markel; and the defendant paid, it is claimed, thirty dollars in two payments of fifteen dollars each on account, leaving four hundred and seventy dollars unpaid, to recover which this action was brought. This thirty dollars as received was paid over to Markel. The complaint refers to the articles of copartnership and the right to recover is predicated upon the clause above referred to. The answer tenders the general issue; and, after hearing the proof, the complaint was dismissed, upon the ground that the contract gives no right of action in Mr. Jarmulowsky on the agreement.” From this determination plaintiff appeals. The contract, though inartificially drawn, sufficiently shows the intention of the parties ; and it would seem that in no circumstance could plaintiff, a stranger thereto, recover thereunder. It was not made for his benefit, nor did any consideration move from him. The fact that he loaned the money which admitted Markel into the copartnership, and the further fact that the defendant was given the privilege, if a dissolution occurred within the three months, of repaying to plaintiff' direct the money paid for Markel’s account, imposed upon the defendant no duty as promisor, so as to create the relation of debtor and creditor between him and plaintiff. The familiar principle of Lawrence v. Fox, 20 N. Y. 268, has no application to the case. FTo promise express or implied can be spelled from the contract in favor of plaintiff. In Vrooman v. Turner, 69 N. Y. 280-284, the Court of Appeals said: “A mere stranger cannot intervene, and claim by action the benefit of a contract between other parties. There must be either a,new consideration, or some prior right or diaim against one of the contracting parties, by which he has a legal interest in the performance of the agreement.”

Tested by this rule it is evident that plaintiff has not even the semblance of a claim against the defendant. It was not within the contemplation of the parties to confer upon him either an interest in or a right under the copartnership agreement; and, without such right or interest, no action can be maintained by him. In Lorillard v. Clyde, 122 N. Y. 501, the Court of Appeals in a case somewhat similar to this said: It is generally regarded as essential that none but a party to a contract has a right to complain of or to recover damages for the breach of it, against any of the other parties to it.”

We .think the court below properly decided the case. That the defendant treated his copartner with scant courtesy is evident from what was developed upon the trial. The right, however, to recover from the defendant is clearly vested in Markel; and, in an appropriate action, brought in the proper tribunal, the copartnership affairs can be fully adjusted and the rights of all parties conserved.

The judgment must be affirmed with costs.

Gildebsleeve and Giegebioh, JJ., concur.

Judgment affirmed, with costs.  