The facts in this case show beyond any question that the lease from Myndert Van Schaick, the original plaintiff, and one of the associates who constituted the association, formed to construct and operate the Third Avenue railroad, to Henry Van Schaick, another of said associates, was made at the request and for the benefit of such company, or such other as might be thereafter formed to succeed them, *Page 354 in the business of building and running said railroad, and that the company and such other as might be formed in its place were to assume and did assume the performance of all the covenants in the lease. This arrangement was substantially carried into effect, Henry Van Schaick merely acting as trustee for the benefit of his associates and not as the lessee of the premises, or as an individual. The declaration of trust, which accompanied, or immediately followed, the lease, evidently indicates an intention that the corporation which was to be formed were to be the beneficial lessees of the premises bound by the covenants and conditions of the lease, and that they were not to be holders of the property, as mere assignees with power to divest themselves of liability, by an assignment to another party.
When the corporation was formed, it continued in possession of the property, paid rent to the lessee, accepted the lease in question, and assumed to perform its covenants and conditions, and, by means thereof, they became liable to the plaintiff for any failure to fulfill, and for any default. The action therefore was properly brought, and the judgment at the Circuit was right.
I also think that the action is maintainable within the principle of Lawrence v. Fox (20 N.Y. 268), which holds that an action lies upon a promise made by the defendant for a valid consideration to a third person, for the plaintiff's benefit, although the plaintiff was not privy to the consideration.
The judgment should be affirmed.
Judgment affirmed. *Page 355