#### Laura A. Knowles *v.*William J. Erwin.

*(Supreme Court, General Term, Fifth Department,*

*Filed January*25, 1887.)

1. PARENT and child — Contract between parties for benefit of third party — What is sufficient consideration.

J. E., the father of plaintiff and defendant, executed and delivered to his son, the defendant herein, a deed of his farm in consideration of natural love and affection, and the sum of one dollar, and at, or about the same time executed and delivered to him a bill of sale of all his personal property. Defendant thereupon executed and delivered to J. E., a contract in which he undertook and agreed to pay plaintiff §500 without interest, payable $100 annually. Subsequently J. E. delivered the paper to C. M. H., a son-in-law, for safe-keeping, and subsequently the same was delivered to plaintiff. In an action brought to recover the § 500 and accrued interest, *Held,*that it was evident that it was the intention of J. E. to make a distribution of his estate among his children, and that the relation of parent and child presented sufficient consideration to support the promise.

2. Same — Third party may recover upon the contract.

That the consideration being a sufficient one, the case presented simply the question of a promise from one person to another to pay a debt to a third person, and that the right of the third person to recover of the promisee, for such a debt, is unquestioned.

2. Gift — When executed — May not thereafter be changed without CONSENT OF DONEES.

The contract having been delivered to O. M. H., was to be presumed to be for the benefit of the daughters of J. E., and at that time it must be considered an executed gift. That therefore J. E. and defendant were powerless to change the same without their consent.

Motion for a new trial by the defendant upon case and exceptions, ordered by the court to be heard in the first instance at the general term.

*Noyes &. Noyes,*for nlaintiff; *P. Q. Peek,*for defendant.

Haight J.

Jared Erwin was the father of the plaintiff and defendant. On or about the 11th day of February, 1866, he executed and delivered to his son, the defendant herein, a deed of his farm, consisting of about one hundred acres of land in consideration of natural love and affection and the sum of one dollar and at about the same time executed and delivered to him a bill of sale of all his personal property. The defendant thereupon executed and delivered to Jared Erwin a contract dated February 12th, 1866, in which he undertook and agreed to pay the plaintiff five hundred dollars, without interest, payable one hundred dollars, annually; payment to commence November 15th, 1879. Subsequently, and in the month of October, Jared Erwin delivered the paper to one Carroll M. Humphrey, a son-in-law, to be kept safely, and subsequently the same was delivered to the plaintiff.

This action was brought to recover the five hundred dollars, with the interest accrued thereon. At the conclusion of the plaintiff’s evidence, the defendant moved for a nonsuit on the ground that no cause of action was made out against the defendant ; that the plaintiff had failed to prove any interest in the *422contract. This motion was denied .and the case was opened for the defendant, whereupon the plaintiff moved for judgment: thereupon the court held and decided that the answer did not set up a defense -to the action, and directed a verdict for the plaintiff for the amount due under the contract. The answer in substance alleged a subsequent agreement between Jared Erwin and the defendant, in and by which the defendant vras released from paying the plaintiff the five hundred dollars under the contract sued upon. The questions thus presented are: First, whether the plaintiff can maintain an action under the contract, and second,'whether or not the subsequent agreement alleged to have been made between the father and son is available as a defense.

It is contended in the first place that there was no privity of contract between the plaintiff and *defendant;*that the relation of creditor and debtor did not exist between Jared Erwin and the plaintiff; that he owed her no legal duty; and that consequently she could not maintain the action upon the contract.

It is true that the relation of creditor and debtor did not exist, but that of parent and child did, and it is quite evident by the papers executed, that it was the purpose of the father to make a distribution of his estate between his children. And where such relationship exists, it has always been held to present a sufficient consideration to support the promise. *[Dutton*v. *Pool,*1 Ventris, 318, 332.]

The child is the proper object for the bounty of the parent ' and in the final distribution of the parent’s estate he is deemed under a moral duty to .provide for it. This doctrine was even recognized by Comstock, J., in his dissenting opinion in the case of *Lawrence*v. *Fox,*20 N. Y., 268, 279. The consideration being such as is recognized by the courts, the case presents the simple question of a promise from one person to another to pay a debt to a third person. The right of the third person to recover of the promisor for such debt is unquestioned. *[Dutton*v. *Poole,*supra; *Schemerhorn*v. *Vanderheyden,*1 Johnsons, 138; *King*v. *Whitely,*10 Paige, 465; *Lawrence*v. *Fox, 20*N. Y., 268; *Burr*v. *Beers,*24 N. Y., 178; *The Rogers Locomotive and Machine Works*v. *Kelley,*88 N. Y., 234.]

We are aware that the case of *Lawrence*v. *Fox*has been distinguished and limited, as for instance, it has been -held that the person for whose benefit the promise was made cannot maintain an action to enforce the promise when the promise is void as between the promisor and the promisee, because of the want of consideration or of fraud. *[Dunning*v. *Leavitt,*85 N. Y., 30; *Crowe*v. *Lewin,*95 N. Y., 423.]

But in all cases to which our attention has been called not one has attempted to overrule or disapprove of the principle involved in and decided in that case.

*423In the case of *Wheat*v. *Rice,*97 N. Y., 296, the action was to reform a contract by striking out certain clauses of the contract to pay creditors, which it was alleged, had been inserted by mistake of the scrivener and without the knowledge or consent of the parties. It was held that the creditors were not necessary parties, and that their appeal was properly dismissed. That a creditor of a firm cannot maintain an action upon an agreement made with the firm by one not a member to pay a portion of the firm’s indebtedness, as no one creditor can show from the contract that it was intended for his benefit or covers any part of his debt. It will readily be observed that this case is not in conflict with *Lawrence*v. *Fox.*

Upon the second question, as we have seen, the contract had been delivered to Humphrey. Jared Erwin had other daughters to whom money was to be paid under the contract. The inference is that it was delivered to him for their benefit, and that at that time it must be considered as an executed gift. If, as we have seen, the consideration was valid and sufficient to support the promise, then the rights of these daughters on the delivery of the instrument, became fixed, and Jared Erwin and the defendant were thereafter powerless to change the same without their consent.

It would consequently follow that the trial court properly disposed of the case, and that the motion for a new trial should be denied and judgment ordered for the plaintiff on the verdict.

So ordered.

Bbadley. J., concurs.