
    James Rogers, Pl’ff and Resp’t, v. James McGay, Impleaded, etc., Def’t and App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed April 15, 1889.)
    
    Contract—When agreement rendered invalid by reason of the intoxication OF THE PARTY EXECUTING IT.
    Where an agreement was executed under such circumstances, that it might he fairly inferred that the party to he hound hy it was drunk at the time he executed the paper, and was incapable of understanding its terms, such an agreement held invalid.
    Appeal from a judgment in favor of the plaintiff in an action to foreclose a lien for materials furnished for the completion of a building. On August 1, 1884, James McGay, who was the owner of the premises, entered into contract with James D. McGown for the completion of the house. McGown afterwards took William A. Hyde into partnership with him in the work, and the materials in question were furnished to the firm as the contractors. The building was finally completed, and under the terms of the contract $15,500, thereupon became due by the defendant, McGay, to the contractors. The owner, McGay, had, during the progress of the work, paid orders given by the contractors, to the amount of $14,560.65, leaving a balance of $939.35 in his hands, but McGay claimed that there was nothing in his hands, for the reason that by virtue of an agreement made with James McGown, he was entitled to an additional credit of $1,500, which he had charged up against the contractors.
    The agreement was as follows:
    
      “ New York, October 8, 1884.
    
      “ In consideration of services rendered and money advanced, to pay for labor and máterials, by James McGay, for the erecfion of two buildings on Tenth avenue, sixty feet south of One hundred and sixth street, I, James D. McGown, am willing to allow, and I do authorize the said James McGay to charge ten per cent for his services and for cash advanced, on our contracts for finishing said houses, amounting to $15,500.
    “ JAMES D. McGOWN.”
    But the plaintiff alleged and McGown testified that his signature to the alleged agreement was procured from him when he was under the influence of drink, that he had no knowledge of the execution of the paper until long after-wards, when it was presented to him on the trial of the action, and the facts were not contradicted by McGay.
    
      Hastings & Southworth, for app’lt; James A. Beering, for pl’ff.
   Dugro, J.

This is an appeal from a judgment in favor of plaintiff in an action brought to foreclose a lien for materials furnished to McGown and Hyde, contractors for the erection of a building belonging to James McGay, their co-defendant in this action.

The main question to be determined in this case is the validity of an alleged ageement, made between the owner and the contractor McGown, on October 8, 1884. If this agreement is invalid, the judgment should not be disturbed. I do not think that the agreement has been shown to be a binding one upon McGown.

The latter’s testimony to the effect that he knew nothing in relation to the making of the agreement; that he first knew of it when he had about finished the work; that the signature to it didn’t seem to be his, anti his evidence: “Q. Do you recollect the fact, or the time, or any circumstances •connected with the signing of that paper? A. I recollect that I did not feel very well, and he took a bottle of whiskey out of the closet and gave me three or four drinks and that is about all I know, and afterwards he showed me this; I have no recollections of it myself; ” when considered with all the circumstances of the case, make it so I cannot but believe that he never consciously assented to the agreement •claimed.

The circumstances which particularly impress me to this conclusion,- are, that, * * * Hyde, McGown’s partner, was not informed by McGown of the existence of the alleged agreement; that the services rendered, and the money advanced prior to October eighth, could not reasonably or fairly be considered to be worth an amount, even approximating the $1,500 (which the defendant McGay says he charged against McGown on October 8, 1884); that McGay had a disposition at times to asks contractors for an allowance to him of a commission for payment of McGown’s orders upon him; that McGay recognizing Hyde, who is not claimed to have been a drunkard, as interested in the contract, made the alleged agreement with McGown, of whom he says, “ I went to the work almost every day, and the poor little fellow (McGown), I would find him lying drunk somewhere.”

The circumstances of the case, and the fact that if McGown was drunk and unconscious of his actions on the eighth of October, he would naturally be unable to recollect what occurred, and that at the trial better opportunity existed for a determination of the amount of credit to be given the testimony of the various witnesses than now exists, make me unwilling to say that the learned trial judge erred substantially in making his fourteenth finding of fact.

As the judgment should not be disturbed if this finding was properly made, it must be affirmed, with costs and dis' bursements.

All concur.  