Erdman v. Upham , 75 N.Y.S. 241 ( 1902 )

Fursman, J.:

The complaint avers that in 1898 the defendant “ made a written Contract with Philip Erdman ” by which the defendant agreed, to ' maintain and support Philip during his life “ for the consideration of some property of the value of about $1,200, which the defendant became the owner of by deed of Philip Erdman then and there;” that between August 1, 1899, and May 1, 1900, the plaintiff maintained and supported Philip with the knowledge and consent of the defendant, and that such support and maintenance was worth the sum of $130.

The answer admits the execution of the deed- referred to in the com plaint,-and denies each and every other allegation thereof.

On the trial the plaintiff offered in evidence a “ deed of property from Philip Erdman to George Upham ” (defendant) which was objected to on the “ ground that plaintiff is not a party to the transaction and cannot maintain an action on any promise, or any agreement contained therein.” This objection was sustained. 2sTo other evidence was offered by the plaintiff,. and the justice thereupon entered a nonsuit against him. Assuming that the complaint states a cause of action, none was proved or attempted to be proved. The complaint sets forth two papers, a contract and a deed. A deed was offered in evidence, which may or may not have contained a contract. The record is silent as to its character and contents. Mo. statement was made in connection with the proposed evidence as to its tendency or effect, or tending to show that it would be made material by subsequent proof. If there was such, a contract as set forth in the complaint the plaintiff was not a party, nor privy to it, and the rule of law is that one who is neither a party to a contract^ nor a privy to it, cannot maintain an action upon it. (Simson v. Brown, 68 N. Y. 355.) “A mere. stranger cannot intervene and claim by action the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties by which he has a legal interest in the performance of the agreement.” (Vrooman v. Turner, 69 N. Y. 280.) The admission that “ there is such deed and contract as offered in evidence ” is no more than an admission of the execution of the paper. Without any information as to the contents of the paper offered we cannot say that the ruling of the justice was not correct. In the absence of any proof or offer to prove that the plaintiff had furnished support to Philip upon the consent of the defendant, it certainly was correct under the authorities above cited. Ho other evidence being offered, the justice was right in granting the nonsuit.

It is suggested that the trial was had and the nonsuit granted on the seventh of December and the judgment entered on the ninth, and that this was not in compliance with section 3015 of the Code of Civil Procedure. It is true that in the formal statement at folio 1 of the printed case it is said that the judgment of the justice was rendered December ninth, and the return .states that the trial was had December seventh, but the return also states that it contains “ all the proceedings ” had in the action, “ including the evidence and the judgment entered therein,” and there is nothing whatever to indicate that the judgment was not rendered and entered immediately upon the granting of the nonsuit. Indeed, on the face of the return it appears that it was rendered and entered immediately. Are we to take the formal statement (which may be a misprint as to the date of the judgment) or the justice’s return as our guide? I think the latter, for that is the only official record of the actual fact. I suggest that the date in the formal statement may be a misprint of ninth for seventh, not only because the return indicates that judgment was rendered immediately upon the nonsuit being granted, but because the notice of appeal to the County Court is from a judgment rendered on the nineteenth of December, undoubtedly a misprint. It is sufficient, however, that the return of the justice, which is an official statement required by law upon an appeal being taken to the County Court, furnishes the only proper evidence to the appellate court of the date of the rendition and entry of the judgment. It has been held, moreover, by the Appellate Division of the fourth department that where a judgment of a justice is entered within a reasonable time after the event upon which it depends occurs, although not on the same day, the statute is complied with. (Sweet v. Marvin, 2 App. Div. 1.) It may be noted that the printed case does not show that any formal judgment for costs was ever entered by the justice from which an appeal could be taken, nor any judgment except the mere statement in the return “ Motion for request granted. Judgment rendered for defendant and against plaintiff as above, with the costs of the action.”

The judgment of the County Court must be reversed, with costs, arid that of the justice affirmed.

All concurred, except Parker, P. J., and Chase, J., dissenting.

Judgment of the County Court reversed, with costs, and judgment of the Justice’s Court affirmed.