
    Byron Traver, Respondent, v. Valentine P. Snyder et al., Appellants.
    (City Court of New York, General Term,
    March, 1901.)
    Promise for benefit of third person — His debt need not'be in. existence when the promise was made.
    Where grantees, on the foreclosure and sale of the mortgaged franchises and property of a domestic corporation in the hands of receivers, covenant in their deeds under the sale to pay “ the expense of the accounting and discharge proceedings of said receivers as and.when the same should be ascertained”, an attorney for the' receivers, who has been awarded by the Supreme Court compensation for such services in a proceeding to which the grantees were not parties, may recover said compensation" of them under the covenant as upon a promise made for his benefit, although he had not rendered the services when the promise was made.
    Appeal by defendants from a judgment in- favor of plaintiff, entered upon a verdict directed by the court.
    ' Charles M. Whitney (James L. Bishop, of counsel), for appellants.
    Byron Traver, respondent, in person.
   Per Curiam.

This action was to recover the amount of an allowance awarded' plaintiff by. the -Supreme Court as compensation • for legal services performed by him in procuring the final accounting and discharge of the surviving receivers of the Archer & Pan-coast Company, a domestic corporation.

The defendants were the grantees of the mortgaged franchises and property of said corporation, purchased at a sale in foreclosure, and were sought to be held liable upon the covenant, contained in their deeds, that they would fully pay, among other things, “ the expense of the accounting and discharge proceedings of said receivers as and when the same should be ascertained.” Defendants’ contention was and is that they could not be held liable upon an agreement under seal, to which plaintiff was not a party, and that they were not bound by the order of the Supreme Court, in a proceeding to which they were-not parties. Their objections were overruled by the trial justice, who directed a verdict .for plaintiff for the full amount claimed, and in so doing we. are of the opinion that no error was committed.

This case is not unlike that of Reardon v. Presbyterian Church, 6 Misc. Rep. 84, wherein it was held that a promise by one person for the benefit of another will sustain an action by that person, although the debt which the one promised to pay be not then in existence, and although at the time of the promise the beneficiary be not identified, and that the fact, that the promise was evidenced by a sealed instrument, made no'difference. We are referred, however, by appellants to the case of Embler v. Hartford Steam Boiler Insurance Co., 158 N. Y., wherein Gray, J., in delivering the opinion of the court, says, at page 436: But under the rules of the common law, giving a right of action upon the engagement or promise of a party, .the cause of' action is vested in the person with Whom, or to whom, the engagement, or the promise, is made. An exception is allowed in the case of a third party, for whose benefit a contract is made; when he may be allowed to bring" an action in his own name. In such a case, however, it must appear that, when the contract was made, some obligation, or duty, was owing from the promisee in the contract to the party to be benefited,” and it is urged that this is. decisive of the question in issue. We fail to see it in that light. An examination of the opinion in question reveals that the portion quoted is clearly obiter dictum, and was not concurred in by the other judges who participated in the decision of the cause in question. We think the law applicable in this case, as laid down by the Cqurt of Appeals, is to be found in Townsend v. Rackham, 143 N. Y., at page 522. where Peck-ham, J., says: “ The doctrine of Lawrence v. Fox (20 N. Y. 268) and the subsequent cases can furnish no ground for sustaining the right of the plaintiffs to maintain this action. In none of them is there an intimation that the action could be sustained by the third person in the absence of any liability in his favor due or to grow due from the one to whom the promise was made.”

As to the objection that the defendants were not bound by the order of Mr. Justice Bischoff, fixing the allowance of the plaintiff in the accounting proceeding, because of their failure to receive notice thereof, vre have only to say that in our opinion said defendants were not entitled to notice of such accounting and discharge proceedings, not having made it a condition precedent to their liability.

We cannot discover that any errors were committed upon the trial, and for that reason believe that the judgment appealed from should be affirmed with costs.

Present: Delehanty, McOabthy and Sci-iuchman, JJ.

Judgment affirmed, with costs.  