Tallman v. Bresler , 65 Barb. 369 ( 1873 )

By the Court, Fahcher, J.

The defendant -appeals from a judgment entered on the report of a referee, on the 18th of May, 1872, for $2,698; also from an order of the Special Term denying a motion to resettle the case. The defendant was head landlord of 863 Sixth avenue, in the city of Hew York. In the fall of 1868, John J. Sullivan, the subdessee of the premises, agreed with the plaintiff to make some alterations in, and repairs to, the building; for which the contract price agreed on was $4,700. When part of. the work was done, Sullivan paid the plaintiff $1,000 on account. The plaintiff went on a little further, and asked ior more money. Sullivan said he had no more money; whereupon the plaintiff refused to go on with the work. The parties then went over to see the defendant. He was absent from the city ; but they saw his brother, Louis Bresler, who told the plaintiff if he would go on and complete the work, he would get the $2,000 they, or his brother, had agreed to pay Sullivan. The defendant returned, and the plaintiff, about the first of May, 1869, called on him. The defendant then said to the plaintiff he had agreed to pay John J. Sullivan $2,000 toward these repairs and alterations, and if he would go on and complete the work, he would pay it to him, when the work was done. The plaintiff accordingly went on and completed the alterations and repairs ; and this action was brought to recover the. $2,000.- The defence was a general denial, and an alleged counter-claim due from Sullivan to the defendant, for rent of the premises. The agreement of the defendant with Sullivan to pay the $2,000, was endorsed on the lease, and is dated the 4th of March, 1869. The lease was assigned by Sullivan to the plaintiff on the 24th of March, 1869, as a collateral security.

The referee found that the plaintiff performed the work and furnished the materials -in and about the alteration and repairs of the premises ; that the defendant promised to pay him therefor $2,000 when the work was completed; that no part of the amount had been paid ; and he ordered judgment for the $2,000, and interest.

There can be no doubt that the judgment of the referee is correct. The defendant became, himself, liable to the extent of $2,000, on his promise to the plaintiff, made upon a valid consideration, which he has received. The promise was an original one, and in no sense collateral, or a promise to pay the debt of another. The defendant entered into an independent obligation of his own, and his promise to pay was not contingent upon the failure to pay of another. It was not an existing or prospective debt of a third- party which the defendant agreed to pay; it was a promise ■ to pay the plaintiff $2,000, on a new and original consideration, which he supplied by the work and materials he afterward furnished. So far as the plaintiff is concerned, in reference to the promise, the defendant cannot point to Sullivan- as the original debtor. The defendant is himself the debtor to the plaintiff, to the extent of the $2,000, which he promised to pay 'him. (Mallory v. Gillett, 21 N. Y. 412. Brown v. Weber, 38 id. 187.) The proposition of the defendant’s counsel cannot be maintained, that the promise was without consideration; for there was valid consideration for the promise in the undertaking of the plaintiff to perform, and in the subsequent performance of the work. Mor is the position tenable that no harm resulted to the plaintiff, from what he has done, because of his legal obligation to Sullivan to do the work. The evidence shows, that Sullivan had refused to pay, and the contract with him for that reason, had been abandoned by the plaintiff, before the arrangement with the defendant was made. In contemplation of law the work performed and materials furnished by the plaintiff, upon the promise of the defendant to pay therefor, were to subserve and promote the interest of the defendant. (Nelson v. Boynton, 3 Metc. 396. Farley, v. Cleveland, 9 Cowen, 639.)

The counter-claim of the defendant is not made out. The plaintiff never took possession of the premises; and, therefore, never became liable for the rent in respect of his possession. ■ The assignment of the lease to him was by way of mortgage, and it is expressly stated to be made “ as collateral security for the payment of $3,700 to become due to the said Tallman on completion of the building on the premises mentioned in said lease; and, on repaying said sum, the said Tail-man is to re-assign this lease to the said Sullivan.” The mortgagee of a term, who has never taken possession, is not an assignee of the whole term, or liable for rent in arrear ; the mortgage being, but a security, and the legal estate still remaining in the mortgagor. (Walton v. Cronly, 14 Wend. 63. Astor v. Hoyt, 5 id. 603. Evertson v. Sawyer, 2 id. 507.) A naked right, and a beneficial enjoyment, are distinguishable, Demainville v. Mann, (32 N. Y 207;) and it is only when a mortgagee takes possession, that he has the estate cum onere, and becomes liable as assignee upon the covenants contained in the lease. (Eaton v. Jaques, Doug. 454.) It is not correct to say that, because the plaintiff entered upon the premises to make the repairs, he had the possession as assignee of the lease; nor is he a mortgagee in possession.

[First Department, General Term, at New York, May 5, 1873.

Ingraham and Handler, Justices.]

The defendant has appealed, also, from an order of the Special Term, denying a motion to direct the referee to resettle the case. He insists the referee did not pass upon all the issues. We do not think that any further findings by the referee were necessary in order to a proper review of all the questions litigated in the case. Exceptions to such findings as were made by the referee, would be effectual to bring here for review all the material questions arising upon the pleadings and evidence.'

The order denying the motion for a resetlement of the case, should be affirmed, with $10 costs; and the judgment entered on the report of the referee, should be affirmed, with costs.