Scarborough & Co. v. Bender Ford, Inc.

• Decision Date: 17 December 1958
• Parties: SCARBOROUGH & COMPANY, Plaintiff, v. BENDER FORD, Inc., Defendant.
• Court: New York Supreme Court

Page 801

180 N.Y.S.2d 801

15 Misc.2d 97

SCARBOROUGH & COMPANY, Plaintiff, v. BENDER FORD, Inc., Defendant.

Supreme Court, Special Term, Onondaga County.

Argued Dec. 1, 1958.

Decided Dec. 17, 1958.

Philip F. Schneider, New York City, for plaintiff.

Langan, Kinney & Langan, Syracuse, for defendant.

FRANK DEL VECCHIO, Justice.

This is a motion to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

The complaint in question alleges that one Carl Denslow was indebted to plaintiff's assignor, the Watertown National Bank, in the sum of $1,802.05; that Zeila Denslow, the mother of Carl Denslow, conveyed to the defendant a piece of real property upon the specific understanding and agreement that the defendant would pay plaintiff's assignor the sum of $1,546 in satisfaction of the obligation owed by Carl Denslow to the Watertown Bank; that the claim of the Watertown Bank against Carl Denslow was assigned to plaintiff for valuable consideration; and that despite demand made upon it by plaintiff on October 7, 1958, the defendant has refused to pay the sum of $1,546 in satisfaction of the debt of Carl Denslow as agreed upon between defendant and the debtor's mother. In view of the foregoing allegations, plaintiff demands judgment in the sum of $1,546 plus interest from October 7, 1958, or, in the alternative, an order directing defendant to convey to plaintiff the property received by it from Mrs. Denslow, declaring plaintiff to be the owner thereof and enjoining defendant from otherwise transferring the property.

Defendant's motion to dismiss the complaint must be granted. Plaintiff is a stranger to the contract between Mrs. Denslow and the defendant and as such may enforce the agreement only if the facts come within one of the four situations set forth in Seaver v. Ransom, 224 N.Y. 233, 120 N.E. 639, 2 A.L.R. 1187, or if the defendant has so conducted itself as to be estopped from asserting a defense to the action. McClare v. Massachusetts Bonding Co., 266 N.Y. 371, 195 N.E. 15. The complaint fails to bring the action within any of these requirements. There was no pecuniary obligation running between Mrs. Denslow, the promisee, and the plaintiff's assignor (Lawrence v. Fox, 20 N.Y. 268) nor was there any close family relationship between them (Todd v. Weber, 95 N.Y. 181; Buchanan v. Tilden, 158 N.Y. 109, 52 N.E. 724, 44 L.R.A. 170); the agreement was not a public contract (Pond v. New Rochelle Water Co., 183 N.Y. 330, 76 N.E. 211, 1 L.R.A.,N.S., 958) nor did the promise run directly to plaintiff's assignor. First National Bank of Sing Sing v. Chalmers, 144 N.Y. 432...