Resinol v. Valentine Dolls, Inc.

Appellate Division of the Supreme Court of New York

Resinol v. Valentine Dolls, Inc.

14 A.D.2d 853, 220 N.Y.S.2d 884, 1961 N.Y. App. Div. LEXIS 7987

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 14, 1961

StatusPublished

Cited by8 cases

This text of 14 A.D.2d 853 (Resinol v. Valentine Dolls, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Resinol v. Valentine Dolls, Inc., 14 A.D.2d 853, 220 N.Y.S.2d 884, 1961 N.Y. App. Div. LEXIS 7987 (N.Y. Ct. App. 1961).

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Opinion

“ It is well settled that before a third party can enforce a contract in his favor it must clearly appear that the contract was made and intended for his benefit. * * * The agreement under which the third party claims must clearly express an intention to assume a duty directly to him.” (10 N. Y. Jur., Contracts, § 239, pp. 160, 162.) The written contract here, as we construe it, was not one whereby the appellants Lodmer and Wolf intended to or did assume any obligation directly to the creditors of Bal Dolls, Inc. The contract of the said appellants, upon its face, appears merely to have been intended as an indemnity and save harmless agreement in favor of Valentine Dolls, Inc. This being so, plaintiff, a creditor of Bal Dolls, Inc., may not recover upon the contract as a third party or donee beneficiary thereof. (See Snyder Plumbing & Heating Corp. V. Purcell, 9 A D 2d 505, 508; Skinner Bros. Mfg. Co., v. Shevlin Eng. Co., 231 App. Div. 656, 659, affd. 257 N. Y. 562; Leary v. New York Cent. R. R. Co., 212 App. Div. 689, 691; Weinbaum v. Algonquin Gas Transmission Co., 20 Misc 2d 276, 279, affd. 285 App. Div. 818; also French v. Vix, 143 N. Y. 90, 94; National City Bank v. Berwin, 240 App. Div. 550, 553.) Settle order on notice. Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.

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“ It is well settled that before a third party can enforce a contract in his favor it must clearly appear that the contract was made and intended for his benefit. * * * The agreement under which the third party claims must clearly express an intention to assume a duty directly to him.” (10 N. Y. Jur., Contracts, § 239, pp. 160, 162.) The written contract here, as we construe it, was not one whereby the appellants Lodmer and Wolf intended to or did assume any obligation directly to the creditors of Bal Dolls, Inc. The contract of the said appellants, upon its face, appears merely to have been intended as an indemnity and save harmless agreement in favor of Valentine Dolls, Inc. This being so, plaintiff, a creditor of Bal Dolls, Inc., may not recover upon the contract as a third party or donee beneficiary thereof. (See Snyder Plumbing & Heating Corp. V. Purcell, 9 A D 2d 505, 508; Skinner Bros. Mfg. Co., v. Shevlin Eng. Co., 231 App. Div. 656, 659, affd. 257 N. Y. 562; Leary v. New York Cent. R. R. Co., 212 App. Div. 689, 691; Weinbaum v. Algonquin Gas Transmission Co., 20 Misc 2d 276, 279, affd. 285 App. Div. 818; also French v. Vix, 143 N. Y. 90, 94; National City Bank v. Berwin, 240 App. Div. 550, 553.) Settle order on notice. Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

14 A.D.2d 853, 220 N.Y.S.2d 884, 1961 N.Y. App. Div. LEXIS 7987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/resinol-v-valentine-dolls-inc-nyappdiv-1961.

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