#### Lattimore and others *against*Harsen.

ALBANY,

August 1817.

A release by pa-ties of one part ander seal,"ío work,rfroro°áÍu" anee of their agreement, &ao? the parties or the other part, is Yatiu. piatotutsladenagreement0 unfoermaeai’enamr penaity,UDdanda released by the paro?,dafrom ba formance under but who promised them that if they would go on and complete íí'ouiiípay them by therd1ayb,0“it ís“tbe pHntHfi KSed 'TenT' Agreement1 ‘by incurring the penalty, there consideration of the defendant, and that the plaintiffs mignt recover under ^reememtuted ■.

THIS was a motion to set aside the report of referees. It appeared from the affidavits which were read, that the plaintiffs entered into an agreement under seal, dated the 14th of *November,*1815, with *Jacob Harsen,*and the defendant, *Cornelius Harsen,*by wiii'ciniie former, in consideration of the sum of 900 *1 J 7 m*. dollars, agreed to open a cartway in *Seventieth-street^*m the city 0f *j\f ew-Y ork,*the dimensions and manner of which were stated in die agreement, and bound themselves under the penalty of 250 dollars to a performance on their part, - Some time after the plaintiffs entered upon the performance, they became dissatisfied with their agreement, .and determined to leave off the work, when the defendant, by parol, released them from their covenant, and promised them that if they would go on and complete the work, and find materials, he would pay them for their labour by the day. The plaintiffs had received more than the sum sti*J J*1 . . , pulated to be paid to them by the original agreement. The ae1 r *J*o o don was brought for the work and labour, and materials found by the plaintiffs, under the subsequent arrangement, and the re-forces reported the sum of 400 dollars, and 5 cents, ih favour of the plaintiffs.

The case was submitted to the court without argument.

*Per Curiam.*

The only question that can arise in the case is, whether there was evidence of a contract between the plain» . r tin and the present defendant, to perform the services for which J . *“IS su^ *1S*brought. From the evidence* it appears that a written contract had been entered into between the plaintiff and the defendant, together with his father *Jacob Harsen,*for the performance of the same work; and that, after some part of it was done, the plaintiffs became dissatisfied with their contract, and determined to abandon it. The defendant then agreed, if they would go on and complete the work, he would pay them by the day for such service, and the materials found, without reference to the written contract.

*331This is the allegation on the part of the plaintiITh, and which the evidence will very fairly support. If the contract is wade out, there can be no reason why it should not be considered I~inding on the defendant. By the former contract, the plaintiffs subjected themselves to a certain penalty for the non fulfilxnent, and if they chose to incur this penalty, they had a right to do so, and notice of such intention was given to the defendant, upon which he entered into the new arrangement. Here `was a sufficient consideration for this promise; all payments made on the former contract have been allowed, and perfe'ct j~ustice appears to have been done by the referees, and no rules or principles of law have been infringed. The motion to set aside the report~ therefore, ought to be denied.

Motion denied.