Tomaso, Feitner & Lane v. Brown , 4 N.Y.2d 391 ( 1958 )

4 N.Y.2d 391 (1958)

Tomaso, Feitner and Lane, Inc., Appellant,
v.
Arthur Brown, Respondent.

Court of Appeals of the State of New York.

Argued March 31, 1958. Decided May 16, 1958.

Sol Horenstein for appellant.

Nathaniel Zelikow, Jesse H. Barkin and Manuel Tancer for respondent.

Chief Judge CONWAY and Judges DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE concur.

Per Curiam.

In this action by plaintiff advertising agency to recover from defendant, stockholder of a corporation, the unpaid balance owing for advertising services (and expenses in connection therewith) rendered to the corporation, the Statute of Frauds (Personal Property Law, § 31, subd. 2) is no defense. The oral promise by defendant to make moneys available to the corporation was made not to plaintiff but to the corporation debtor (O'Connor v. Bankers Trust Co., 159 Misc. 920, 932, affd. 253 A.D. 714, affd. 278 N.Y. 649; Barker v. Bucklin, 2 Denio 45, 60; 2 Corbin on Contracts, § 357; 2 Williston on Contracts [Rev. ed.], § 460; 49 Am. Jur., Statute of Frauds, 438-439; Restatement, Contracts, § 180, comment c; see, also, Tighe v. Morrison, 116 N.Y. 263, 270; Barker v. Bradley, 42 N.Y. 316; Block v. Greenfield, 137 Misc. 573; Eastwood v. Kenyon, 11 A. & E. 438, 445; 32 N. Y. U. L. Rev. 1395). Since, however, plaintiff is at best an incidental beneficiary rather than a third-party creditor beneficiary, it may not enforce the agreement made between defendant and the corporation.

Judgment affirmed, with costs.