
    SUPREME COURT.
    John Mittenbeyer agt. Jacob S. Atwood and others.
    Although, in an action founded on a hill of exchange or draft, there is no right of action against the drawees, where on presentation they refused to accept, yet, if the complaint alleges that, on an accounting had between the drawers and drawees, there was left in the hands of the drawees, by the drawers, sufficient money to pay said draft, and which the drawees then agreed to pay to the holder, it is a cause of action on a promise made to a third person for a fixed consideration, and valid.
    
      New - York Special Term, October, 1859.
    Demurrer to complaint.
   Ingraham, Justice.

If this action was founded on the bill of exchange or draft set out in the complaint, I think there could be no recovery against the defendants, Atwood & Co., thereon. They refused to accept on presentation, and, although inferred, their refusal gave the plaintiff no right of action against them.

In the complaint, the plaintiff, after setting out the bill of exchange and its presentment and refusal, and also that Atwood & Co. had the moneys in their possession, which they were directed by the drawers to apply to the payment of the bill, it also alleges that there was between the drawers of the draft and Atwood & Co. an accounting and settlement of their money transactions, and that on such accounting the drawers left in their hands sufficient money to meet and pay said draft on presentment, and which the said Atwood & Co. then agreed to pay the holders of the draft on presentment.

This, then, is a cause of action against a person on a promise made to a third person, for a fixed consideration, to pay such person money. Such promises have been held to be valid, and the foundation of an action by the person for whose benefit the promise was made. (Weston agt. Banker, 12 J. R. 276; Schermerhorn agt. Vanderheyden, 1 J. R. 139; Shear agt. Overseers of Hillsdale, 13 J. R. 496; Judson agt. Gray, 17 Howard’s Pr. Rep. 289.)

I think the plaintiff’s complaint contains a good cause of action.

Judgment for plaintiff on demurrer, with leave to answer, on payment of costs.  