
    Adrian H. Muller, Plaintiff and Respondent v. John T. B. Maxwell, Defendant and Appellant.
    1. When the written terms of a sale of a lease of real estate for a period of fifteen years are, that “ the lessee will pay the auctioneer his fee of $10, for each year, being $150, in cash, this day,” and the person purchasing, at the time of such purchase, signs a paper-writing, (at the foot of such written terms,) which states, that he has leased such real estate for the sum of $8150 per annum, and “ agrees to comply with the terms above set forththe auctioneer, (a lease of the premises having been made to, and accepted by such purchaser,) may maintain an action in his own name, against the purchaser, to recover such fees.
    2. The purchaser, in such a case, by force of the terms of sale, and of his agreement to comply therewith, promises to pay the auctioneer’s fees directly to the auctioneer. The grant of the lease to the purchaser, and his acceptance of it, are a sufficient consideration for the promise. The auctioneer is the actual party in interest, as promisee, and alone entitled to receive the fees, and may sue, in his own name, to recover them.
    (Before Bosworth, Hoffman, Slosson, and Woodruff, J. J.)
    Heard, Dec. 12;
    decided, 19, 1857
    This is an appeal by the defendant, Maxwell, from an order made at Special Term, November 10, 1856, overruling his demurrer to the plaintiff’s complaint.
    The complaint states, that “ the plaintiff heretofore, and on or about the 26th day of February, 1856, was employed as auctioneer, by Messrs. Thompson, the owners of the premises hereinafter mentioned, or persons entitled to make the lease hereafter mentioned, to offer, at public auction, in the Merchants’ Exchange, in the City of Hew York, a certain lease or right to have a lease of the premises Ho. 38 Wall street, in the City of Hew York, under the terms of sale and written conditions, a true copy of which is hereto annexed, marked A; that, at the time and place aforesaid, the plaintiff, as such auctioneer, offered said lease and right to take a lease at public auction, under the aforesaid terms and conditions, which were then and there read and announced as the terms and conditions upon which said lease was offered, and the defendant then and there bid and agreed to pay the-yearly rent of eighty-one hundred and fifty dollars for said lease, under said terms and conditions; and the rights offered, and the benefits mentioned in said terms and conditions were thereupon struck down to the defendant, who thereupon subscribed a memorandum annexed to said terms and conditions, a true copy of which is hereto annexed, marked B; and the defendant, in consideration of the premises and the agreement of the aforesaid employer of the plaintiff, to execute and deliver the lease mentioned in said memorandum, then and there made with him, agreed, at the same time, to take such lease, and fulfil the said terms and conditions mentioned in said memorandum, on his part, and further agreed with the plaintiff’s said employer, and also with the plaintiff, to pay to the plaintiff the sum of one hundred and fifty dollars, for his services in the matters aforesaid, in cash, on the' day of sale ; that the plaintiff, and also his said employer, has fulfilled all the conditions precedent of said agreement, on his part, and the lease mentioned in said memorandum has been given to the defendant, or his assignee, or nominee, prior to the commencement of this action; but that the defendant 'has not paid the sum of one hundred and fifty dollars, so agreed by him to be paid to the plaintiff, in and by said terms and conditions, and his subjoined memorandum, though the same has been demanded from him, but the same remains wholly due and unpaid.
    “ Wherefore the plaintiff demands judgment against the defendant in this action, for said sum of one hundred and fifty dollars, and interest thereon, from the 26th day of February, A. D., 1856.”
    A.
    “ Terms of Sale of Lease, 38 Wall Street “The lots, with the buildings thereon, No. 38 Wall street, will be leased for fifteen years, from 1st day of May, 1856, at so much per annum, payable quarterly on the usual quarter-days.
    “ The lessee will be required to covenant to pay all taxes and assessments, including the Croton water tax, from the 1st day of May, 1856, during the whole term of said lease.
    “ The lessee is to have the privilege of making any alterations in the building, which shall be left on the premises at the expiration of said lease. Satisfactory security is to be given by the lessee, if required by the lessor, for the faithful fulfilment and performance of all the covenants of the lease. The parties taking the lease must be prepared to execute the papers on or before the 4th of March next, at the office of Anson Livingston, No. 52 John street, who will give all necessary information as to title.
    “ The lessee will pay the auctioneer his fee of $10 for each year, being $150, in cash, this day.
    
      “Bated New York, Feb. 26,1856.
    B.
    “ I have leased the premises, No. 38 Wall street, for the sum of $8150 per annum, and agree to comply with the terms above set forth. John T. B. Maxwell.”
    
      " New York, Feb. 26, 1856.”
    The defendant demurred to the complaint, on the ground that it “ does not state facts enough to constitute a cause of action.” The demurrer specified, as reasons for the insufficiency of the complaint, the several propositions contained in the points made by the appellant, on the argument of the appeal.
    On the argument of the demurrer, at Special Term, an order was made “that the plaintiff have judgment on the said demurrer, unless the defendant answers within twenty days after service of a copy of this order, and pays to this plaintiff $22, costs of the said demurrer.”
    From that order, the present appeal is taken.
    
      B. F. Mount, Jr., for defendant, the appellant.
    I. The written instrument, upon which this action is brought, is void, because—1. It is not subscribed by the parties by whom the lease was to have been executed; nor do their names appear therein. (2 R. S. 135, § 8, orig. edit.) 2. It expresses no consideration. 3. It is not mutual: the defendant could have no claim or right of action against the plaintiff. (Champlin v. Parish, 11 Paige R. 405; Mc Whorter v. McMahon, 10 Paige R. 386 ; Townsend v. Hubbard, 4 Hill R. 351.)
    H. The contract is entire, and not divisible; and if void in part, it is void altogether. (King v. Brown, 2 Hill R. 485; Thayer v. Bock, 13 Wend. R. 53.)
    
      III. The agreement, if any, was made with the owners of the premises, and this action should have been in their name.
    IV. If the instrument be divisible, and allowing one action thereon for the benefit of the lessors, and another by the plaintiff, for his fees, even then, the fulfilment, by the defendant, of one part, does not take the case out of the statute. '
    V. The instrument was not made valid by the subsequent fulfilment of any part of it. It had no reference to any future consideration, and if void at the time of its execution, it was void for all times: a fortiori, if the alleged undertaking with the plaintiff is to be considered as independent.
    VI. The payment of the plaintiff’s fees is not one of the “terms of the lease,” expressed in the instrument.
    VII. The services of the plaintiff were a past consideration when the defendant signed the instrument, and arose out of his engagement with his principal. The undertaking of the defendant, therefore, is to answer for the debt of another, and should express the consideration. (2 R. S. 135.)
    
      Weelcs and De Forest, for respondent.
    I. Upon the facts stated in the complaint, independently of the averment of an express promise, the defendant became liable to pay the plaintiff as soon as the lease was struck down to him.
    II. The complaint, in addition, sets forth an independent agreement, for sufficient consideration, made directly between the defendant and plaintiff, to pay the latter.
    III. The promise set forth is, to pay the plaintiff for his services as auctioneer, etc.; and, being for the benefit of the plaintiff, he is the proper party to sue upon it. (Schemerhorn v. Vanderheyden, 1 Johns. Reports, 138; Ellwood v. Monk, 5 Wend. 235 ; Brewer v. Dyer, 7 Cushing, 338.)
    IV. Taking the entire complaint together, it appears that, before making the lease, it was well understood between the parties, that the person who received it was to pay the plaintiff his stipulated fees. The defendant, having accepted the lease upon this understanding, is bound to pay the $150, as part of the consideration-money.
   By the Court. Slossoh, J.

—Whether the memorandum, annexed to, and forming part of the complaint, was a sufficient memorandum, within the statute of frauds, to bind the owner of the premises to make the lease, in pursuance of the sale at auction, it being signed neither by the owner nor by a duly authorized agent, is not a question which can be raised on this demurrer; since the owner has actually executed the lease to the defendant, upon the terms upon which the premises were bid off by him.

Had the memorandum been actually signed*by the owner, or by the plaintiff, as his lawfully authorized agent, it would, though not signed by the defendant, have bound the latter, and have created, in respect to the auctioneer’s fees, a privity of contract between him and the plaintiff, which would have entitled the latter to sue for the fees, in his own name. (Bleecker v. Franklin, 2 E. D. Smith, R. 93.)

But the memorandum is actually signed by the defendant, and, by it, he expressly agrees to pay the auctioneer the fees for which he now sues. Whether this be treated as a stipulation with the owner, to pay the auctioneer, or with the auctioneer himself, in either case, the latter may sue for them in his own name.

The argument, that the owner of the premises was not bound by the memorandum, and therefore, the defendant is not bound, is answered by the fact, before adverted to, that the owner has complied with the terms of it, and executed the lease.

The defendant cannot now object to its sufficiency, both parties having acted under it, and the defendant having received the benefit of it.

Besides, the complaint alleges a distinct agreement, by the defendant, with the plaintiff, to pay the fees in question, for his services as auctioneer, and that the services were rendered.

This the demurrer admits. Sucha promise, would not be a promise to pay the debt of another, but an original undertaking of the defendant himself, and would be good, though not in writing.

In every aspect, the demurrer is not well taken.

The order must be affirmed.

Affirmed accordingly.  