Priester v. Hohloch , 75 N.Y.S. 405 ( 1902 )

Kellogg, J. (concurring) :

The plaintiff cannot maintain an action on the lease for the reason that she is not a. party to the lease- and there is no consideration for the promise to pay rental to her. If she acquired any property right through the terms of the- lease, she did so at the time the lease was executed and such property right could not be subsequently ^destroyed without her consent. The contingency of payment of rental, to her. only in case she should survive the lessor does not. affect the legality of the promise; it is only a measure of the property interest intended to be vested in her. The bare fact that plaintiff was the wife of the lessor is not a sufficient consideration to support the promise for her benefit contained in the lease.

This seems to be the conclusion reached in the following cases : Lawrence v. Fox (20 N. Y. 268); Durnherr v. Rau (135 id. 219); Buchanan v. Tilden (158 id. 109). And for the reasons here stated, I concur in the reversal of the order.

Smith, J., concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with usual leave to plaintiff to amend on payment of costs.