Benedict v. Dunning , 1 Daly 241 ( 1862 )

By the Court.

Brady, J.

In this case the evidence shows that the defendant agreed to take a loan which had been negotiated fur one Schoonmaker, and to pay the expenses incurred by the plaintiffs in searching the title to the premises on which the loan Was to be made, -and.also to pay for' the services rendered by the plaintiffs. It is true that Schoonmaker was liable to the plaintiffs, but the defendant assumed the responsibility which had accrued in consideration of the transfer to him of the subject matter of such liability, and was, by his arrangement with the plaintiffs, to receive the entire benefit of such expenditure as had been made, and such services as had been performed for Schoonmaker. The consideration of the promise by Schoonmaker was the loan, and such was also the consideration of the promise by the defendant. It was a new promise, to the effect that if the plaintiffs would transfer the loan to him, he would pay them the same charge that they would receive from Schoonmaker had the loan been made to him. Hot only was that the agreement, but the defendant also promised to pay $25 for such services in addition as would be necessary to make the transfer in due form to secure the mortgagee. The money was ready, and was kept in abeyance, awaiting the convenience of the defendant, and subject to his order. This was a further consideration for the promise. I think this ease is controlled by the principles laid down in Mallory v. Gillette 21 N. Y. Rep., 412, and that the judgment should be affirmed.

Judgment affirmed.