The Reformed Protestant Dutch Church of Westfield, Staten Island, vs. Susan D. Brown, Executrix, &c.

The Reformed Protestant Dutch Church of Westfield, Staten Island, vs. Susan D. Brown, Executrix, &c. Where a subscription paper for the erection of a church edifice, containing certain conditions, was signed by B., who, during the erection of the building repeatedly told those in charge of the work to go on and finish the edifice, and he would pay his subscription; Held that this was a sufficient waiver of the conditions in the subscription ¡ and that the fact that the society, on the faith of these promises, and similar promises from others, went on and finished the edifice, constituted a sufficient consideration to sustain tho promises. A promise, made for the benefit of a society thereafter to be incorporated, but t before it is m esse, is valid and binding; and upon tbe subsequent incoipo- | ration of the society it can maintain an action upon the promise; especially ? where a portion of the work constituting the consideration is done subse- j: quent to the incorporation. APPEAL by the defendant, from a judgment entered upon the report of a referee. The action was brought against the defendant as executrix of David Brown, deceased, to recover $500 upon a subscription by the testator for the erection of the church edifice of the plaintiffs; also $100 subscribed by him towards the salary of the minister. The referee, by his report, found the following facts: That the plaintiffs are a religious society duly organized and incorporated, according to the laws of this state, as “ The Reformed Protestant Dutch Church of Westfield, Staten Island." That David Brown was, on or about the 26th day of February, 1849, indebted to the plaintiffs in the sum of $600, as follows: $500 upon and as a subscription to build a house of worship for the plaintiffs, the Reformed Protestant Dutch Church of Westfield, Staten Island, which sum the said David Brown promised and agreed to give and pay towards the erection and building of the said church edifice, and the sum of $100 a year for the support and maintenance of a minister of the gospel, for said church; that afterwards, and after the church edifice had become nearly completed, the said Brown again promised and agreed to give and pay towards the erection and building of the said church 'edifice the sum of $500, and the said sum of $100 a year for the support and maintenance of a minister of the gospel for said church, and expressly waived the operation and force of a clause in an article of agreement or statement made and signed on the 9th day of April, 1849, in relation to the indebtedness of the church. That the said David Brown was repeatedly called upon to pay to the plaintiffs the sum of $600, but did not pay the same., That the plaintiffs were legally incorporated as a church, on the 11th day of September, 1849, and the act of corporation and certificate of election of officers bf the church or society was duly and legally acknowledged, and was recorded on the 31st day of June, 1851, in the office of the clerk of Richmond county, and that the original formation of the said society and subscription was on the 26th day of February, 1849. That the said church was so completed and used, as was intended, for public worship, a minister employed, and the society was free from debt, within the meaning of the article of April 9, 1849, signed by David Brown and others. That said Brown had departed this life, leaving sufficient assets to pay all debts owing by him, and that on or about the 3d day of February, 1853, letters testamentary on his estate were granted and committed unto his widow, Susan D. Brown, executrix named in the last will and testament of said David Brown, deceased. And that such executrix entered upon her duties as such, was duly qualified, took possession of the goods, chattels and credits of said David Brown, deceased, according to law, and that she had sufficient money in her possession, arising from the estate of the said David Brown, deceased, to pay all debts due from the estate; and that the plaintiffs’ demand, as set forth in the complaint, had been repeatedly presented to said executrix for payment, and payment demanded, previous to the commencement of this action, and that she had neglected and refused to pay the same; and that there is now due from Susan D. Brown, executrix of David Brown, deceased, to the plaintiffs the sum of $959.33, for principal and interest, as claimed in the complaint. From the facts so found and reported by him, he decided and reported as matters of law, that the plaintiffs were entitled to judgment against the defendant, as such executrix, for the sum of $959.33, together with costs. For which sum judgment was entered, at a special term, in favor of the plaintiffs. J. S. L. Cummins, for the appellants. John Fitch, for the respondent. [MAJORITY — By the Court, Pratt, J.] By the Court, Pratt, J. In this case it does not appear that any promise was made by the defendant’s testator to pay his subscription, after the plaintiffs were actually and legally incorporated. But it does appear that after the society had made a preliminary organization, and after the articles of association had been executed, the testator frequently told those in charge of the erection of the church edifice to go on and finish it and he would pay his subscription. This was clearly a sufficient waiver of the conditions in the original subscription. And the fact that the society, on the faith of this promise and similar promises from others, went on and finished the church edifice, constitutes a sufficient, consideration to sustain these promises. [New York General Term, May 2, 1859. Roosevelt, Ingraham and Pratt, Justices.] The only remaining question, of any moment, is, that the plaintiffs had no legal existence at the time of the testator’s making the promises upon which the action is predicated. It is claimed that such being the fact, the plaintiffs could not be a pai'ty to the contract. But it has been repeatedly held that a subscription made before the corporation was in esse, with a view to a future incorporation, was binding, and that a corporation subsequently organized could sustain an action upon it. (Hamilton and Deansville Plank Road Co. v. Rice, 7 Barb. 157. Stanton, Pres’t, v. Wilson, 2 Hill, 153. Trustees of Farmington Academy v. Allen, 14 Mass. Rep. 172.) In this case the promises were made for the benefit of the society thereafter to be incorporated. All parties contemplated the subsequent incorporation of the society, and although the promises were made just before such incorporation,- yet a portion of the work was done afterwards. Upon such incorporation, therefore, the society became vested with the claims against those who had agreed to pay for erecting the church edifice. I think, therefore, that the judgment should be affirmed. Judgment affirmed.