
    Reynolds v. Lawton et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    January 22, 1892.)
    1. Action—Who mat Sue—Promise for Benefit of Another.
    Defendant purchased an interest in a copartnership, and, as part of the consideration, he assumed and agreed to pay the rent then due from the firm to the landlord. Held, that the landlord could sue on such promise of defendant to pay the accrued rent. Lawrence v. Fox, 20 N. Y. 268, followed.
    3. Objections to Evidence—Conclusions of Law.
    In such case, defendant cannot testify that he did not hold himself out as a partner, as such question calls for a conclusion of law.
    Appeal from Monroe county court.
    Action for rent by M. F. Reynolds against A. W. Lawton and others. From a judgment for plaintiff, defendant Lawton appeals. ’
    Affirmed.
    For former reports, see 8 FT. Y. Supp. 403; 9 FT. Y. Supp. 953.
    Argued before Dwight, P. J., and Macohber and Lewis, JJ.
    
      Turk cB Barnum, for appellant.
    (1) The alleged promise to assume the rent was without consideration, and void under the statute of frauds. Belknap v. Bender, 75 N. Y. 446; Pfeiffer v. Adler, 37 N. Y. 164; and Kelly v. Roberts, 40 N. Y. 441. (2) To render the alleged assumption of rent available to plaintiff, it must have been for his benefit; otherwise the promise is within the statute of frauds, and the rule of Lawrence v. Fox, 20 N. Y. 268, does not apply. Vrooman v. Turner, 69 N. Y. 284; Pardee v. Treat, 82 N. Y. 385; Durnherr v. Rau, (Sup.) 15 N. Y. Supp. 344; Berry v. Brown, 107 N. Y. 659, 14 N. E. Rep. 289; Merrill v. Green, 55 N. Y. 270; Garnsey v. Rogers, 47 N. Y. 233; Turk v. Ridge, 41 N. Y. 201; Simson v. Brown, 68 N. Y. 355; Metropolitan Trust Co. v. New York, L. E. & W. R. Co., 45 Hun, 91; Reynolds v. Lawton, (Sup.) 8 N. Y. Supp. 403.
    
      G. J. Bissell, for respondent.
   Dwight, P. J.

The action was to recover for rent of apartments in the Reynolds Arcade, in Rochester. They had been occupied by a firm composed of three persons, Ray, Austin, and Bowdish, doing business under the name of the “ Arcade Photograph Company. ” There is evidence to support the plaintiff’s theory of the case, viz.: That this copartnership was indebted to the plaintiff for five months’ rent at $15 per month, when the defendant bought out the interest of the two partners Ray and Austin in the stock, fixtures, and business of the firm, with the consent of Bowdish, and with the view of continuing the business in partnership with 'the latter; that in making such purchase, and as part of the consideration of it, he assumed and agreed to pay the rent of the rooms, then due to the plaintiff, as above mentioned. This evidence was not uncontradicted, but we are not at liberty to inquire, on this appeal, as to the relative weight of the evidence, for the reason that there was no motion for a new trial in the county court. Reilley v. President, etc., 102 N. Y. 383, 7 N. E. Rep. 427; Boos v. Insurance Co., 64 N. Y. 236, 242. We must therefore assume the facts stated to have been found by the jury on sufficient evidence. Such being the facts, the case seems to be directly within the doctrine of Lawrence v. Fox, 20 N. Y. 268, and to stand upon the best reason which has been given, for sustaining an action by a party not privy to the contract, nor its consideration, upon which the action is brought. It is the case of a promise by the defendant to pay his own debt to Bay and Austin by paying their debt to the plaintiff. There has never been any question but such a promise could be enforced by the person for whose benefit it was made. It was for a good consideration, viz., the transfer of the partnership interest of Bay and Austin. It was not within the statute of frauds, because it was a promise by the defendant to pay his own debt in the particular manner specified. It was solely and directly for the benefit of the plaintiff, and it could be enforced by him under the unquestioned doctrine of Lawrence v. Fox. The cases industriously collected by counsel for the appellant, in which it has been held that the contract was not within the doctrine here applied, were variously distinguishable from the case at bar, and are not within Lawrence v. Fox, by reason of such distinctions. The instructions as to the effect of defendant’s omission to call the other parties to the contract with him was, we think, properly qualified. The objection to the question put to the defendant by his own counsel, “Did you in any way hold yourself out as a partner?” was properly sustained on the ground—specified on this trial—that it called for a conclusion of law. There was, we think, no error committed on the trial which vitiates the verdict. The judgment must be affirmed. Judgment of the county court of Monroe county affirmed.

All concur.  