Newton v. VanIngen
| Decision Date | 25 June 1964 |
| Citation | 21 A.D.2d 425,250 N.Y.S.2d 874 |
| Parties | Charles D. NEWTON, Respondent, v. Floyd B. VanINGEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
VanSchaick, Woods, Strathman, Sturman & Constanza, Rochester, for appellant; Charles P. Maloney, Rochester, of counsel.
Nixon, Hargrave, Devans & Doyle, Rochester, for respondent; William H. Morris, Rochester, of counsel.
Before WILLIAMS, P. J., and BASTOW, HENRY, NOONAN, and DEL VECCHIO, JJ.
Plaintiff is an attorney who performed legal services for Ralph and Gladys Dieter prior to July 1960 in connection with hotel property owned by them on Conesus Lake. In July 1960 defendant was the owner of three recorded mortgages executed by the Dieters which were liens against the property. On July 15, 1960, plaintiff, defendant and the Dieters agreed that the services rendered by plaintiff, and to be rendered by him in connection with an anticipated sale of the hotel premises, were worth $10,000, and a mortgage for that amount was delivered to plaintiff. This mortgage was not recorded.
When the sale of the property was not consummated, defendant began foreclosure proceedings in October 1960 and filed a lis pendens; judgment of foreclosure was entered December 8, 1960 and advertising was commenced for sale of the premises on February 8, 1961.
About one week prior to the date of the sale, the Dieters, with the knowledge and approval of plaintiff, executed and delivered a deed to defendant, vesting him with title to the hotel property, it having been agreed by plaintiff, defendant and the Dieters that defendant would attempt to sell the property and, out of the proceeds of sale, would recoup the amount due him on his mortgage and expenses, pay plaintiff the $10,000 unpaid attorney's fees due from the Dieters, pay off other obligations of the Dieters and remit any balance to them. Plaintiff, on his part, state that he would not record his mortgage or bring any action against the Dieters and repeated that he would complete the legal services incidental to the sale of the property. After several unsuccessful attempts to dispose of the premises, defendant ultimately sold it in December 1962 for an amount which was insufficient to repay defendant the amount of his mortgages, interest and expenses and also to pay plaintiff his legal fees. After learning that defendant did not intend to pay plaintiff's claim, the latter brought an action against defendant based on an oral promise to pay the $10,000 owed by Ralph and Gladys Dieter for legal services rendered to them.
The alleged oral promise was 'a special promise to answer for the debt, default or miscarriage of another person'. Such a promise is unenforceable unless in writing (Personal Property Law, § 31), or unless there was a new consideration and beneficial interest moving to the promisor...
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