The court is impressed with the strong equity of plaintiff’s cage as exhibited, not only by the oral evidence and the letters of the defendant, but by the very terms of the agreement sued upon. But conceding this, and, further, that there was a contract between Dun and the defendant, and between Buchanan and the defendant, upon a sufficient consideration, for the benefit of the plaintiff, the question remains whether she can recover upon such a contract.
The respondent, recognizing the difficulty of sustaining such right upon the contract made between Dun and defendant, rests her case upon that made between the defendant and' Buchanan, to pay the plaintiff $50,000 in consideration of Buchanan’s services to defendant. In opposition the appellant contended below, as he does here, that the only contract shown was one between Dun and the defend*358ant relating to loans of money made by Dun to the latter, which were to be and. were actually repaid to Dun, and not to plaintiff, who, it is insisted, had no interest in the contract claimed to have been made for her benefit; that no -consideration was given by plaintiff for any promise made by the defendant; that the letter which was the basis of the action was addressed to Dun, and, therefore, showed a contract with him and not with the plaintiff’s husband, and that Dun advanced the only substantial consideration for the alleged promise, and that this has been repaid.
There is much force in this construction of the contract between the parties; but if we take the stronger and more favorable position advanced by the respondent it remains to be considered, assuming a contract between plaintiff’s husband and defendant for her benefit, whether upon this theory she would be entitled to recover. As thus presented the question is, can a wife enforce payment in her own name where the husband renders valuable services and stipulates with the person to whom the same are rendered that compensation therefor shall be made, not .to him, but to her ?
It is insisted that the promise having been made to the husband of the plaintiff, who owed to her the obligation of support and maintenance (an obligation both legal and moral), she as the designated beneficiary is entitled to enforce the contract expressly made for her benefit and on her behalf. In support of this proposition our attention is called to many English cases, and many cases in this State, beginning with that of Lawrence v. Fox (20 N. Y. 268), wherein it was held that an action lies on a promise made by the defendant upon a valid consideration to a third person for the benefit of the plaintiff, although the plaintiff was not privy to the consideration. In Vrooman v. Turner (69 N. Y. 284) it is said: “ The courts are not inclined to extend the doctrine of Lawrence v. Fox to cases not clearly within the principle of that decision. Judges have differed as to the principle upon which Lawrence v. Fox and kindred cases rest, but in every case in which an action has been sustained there has been a debt or duty owing by the promisee to the party claiming to sue upon the promise. Whether the decisions rest upon the doctrine of agency, the promisee being regarded as the agent for the third party, who, by bringing his action adopts his acts, or upon the doctrine of a trust, the promisor being regarded *359as having received money or other thing for the third party, is not material. In either case there must he a legal right, founded upon some obligation of the promisee, in the third party, to adopt and claim the promise as made for his benefit.” This and similar cases that might be cited, in which Lawrence v. Fox has been distinguished, will show that that case has been sharply criticised and its scope materially limited, and that the tendency of the decisions is to adhere to the rule at common law, “ that one cannot acquire rights under a contract to which he is not a party, and hence no right to enforce a contract is given to a person not a party to it, or an assignee of such a party.” (Lawson on Contracts, § 113.)
There have been, however, certain exceptions to this general rule recognized in some of the cases, beginning with the English case of Dutton v. Pool (1 Ventris, 318), upon which the learned trial judge relied for his action. This case is the foundation for a distinct class of cases where promises have been made to a father or other near relative for the benefit of a child or other dependent relative in which the person for whose benefit the promise was made has been permitted to maintain an action for the breach of it. The nearness of the relation between the promisee and him for whose benefit the promise was made has been sometimes assigned as the reason for these decisions, and while the principle upon which they have been placed has been variously stated, and in some instances questioned, both in England and America, the decisions have been followed and must, therefore, be regarded as settled law. In this State the cases in which reference has been made to Dutton v. Pool are, Schemerhorn v. Vanderheyden (1 Johns. 140); Cumberland v. Codrington (3 Johns. Ch. 254); Barker v. Bucklin (2 Den. 45); Bleeker v. Bingham (3 Paige, 246); King v. Whitely (10 id. 465); Lawrence v. Fox (20 N. Y. 268); Burr v. Beers (24 id. 178); Knowles v. Erwin (43 Hun, 150). In all of these where the promise of the third person has been enforced it will be found that, as in Dutton v. Pool, the promisee and the person for whose benefit the promise was made stood in the relation of parent and child; and in Todd v. Weber (95 N. Y. 181) the person to be benefited was an adopted child; and they proceeded upon the fact that the promisor had obtained a consideration from the father for which he undertook to discharge the duty that such father owed to the child *360of making suitable provision for tlie child by way of maintenance and support or by the advancement of a portion; and it was recognized that the cases were to be supported upon the- juinciple of the duty or obligation that the father owed to the child and which for a valuable consideration the promisor agreed to perform. We do not regard these cases, therefore, as authority for the broad proposition that a near relationship between the promisee and the person who is to be benefited by the contract would give such person a right of action.
But it is insisted that the duty which a father owes his child is no greater or higher than that which a husband owes his wife; and it was assumed by the learned trial judge that the duty and obligation of the husband to the wife is, as a consideration, quite equal to the duty and obligation of the father to the child. But if we concede that the obligation of the father is to support the child, and that the duty of the husband is to support the wife; that upon the death of the father the child will be entitled to a portion of his estate, and that upon the death of the husband the wife would be entitled to a portion of her husband’s estate, the fact still remains that this was not a contract looking towards the discharge of the obligation which the husband owed to support the wife, and must, therefore, be supported, if at all, upon the mere relation of husband and wife. We can find no authority for holding that a promise made to the husband bji a third person for the benefit of his wife, which was not intended to provide for her support or to discharge the husband’s duty in that regard, could be enforced by the wife. Nor do we think that there is a disposition to extend the principle of some of the cases relating to father and child to any other relationship. An examination of these cases will show that, in almost all of them, the obligation and duty of support and maintenance rested upon or was assumed by the person to whom the promise was made, and that the promisor, for a consideration passing from the promisee, undertook to discharge that duty or obligation. Here the arrangement was, not to provide a fund for the support and maintenance of the wife, but to furnish her with an independent sum; and the absence of any duty or obligation on the husband’s part to provide such, eliminates the essential element or principle which is the basis of nearly all the cases where actions on behalf of a child have been allowed *361upon promises made by a tliird party to the father. As we have said, however, we do not think there is a disposition to regard as authority any of the cases in which the mere relationship between the parties has been held a sufficient consideration moving from the party for whose benefit the promise was made as against the promisor. On the contrary, the latest case in the Court of Appeals (Durnherr v. Rau, 135 N. Y. 219), while not directly in point, is, in its controlling principles, adverse to the plaintiff’s right to maintain this action. There, D., the plaintiff’s husband, executed to defendant a deed of certain premises with covenant of warranty; he had previously executed mortgages thereon in which plaintiff joined. The grantee covenanted to pay all incumbrances “ by mortgage or otherwise,” and the deed declared that the grantor’s wife reserved her right of dower in the premises. The mortgage was subsequently foreclosed and the premises sold. In an action for breach of the covenant, plaintiff claimed as damages the value of her inchoate right of dower cut off by the foreclosure. In determining adversely to her right to maintain such an action, the court, in speaking of the force of a covenant by the grantee to pay off the mortgages and save the wife’s right of dower, says : “ But the wife was not a party to the mortgages, and in no way bound to pay them. She had an iiiterest that they should be paid without resort to the land, so that her inchoate right of dower might be freed therefrom. The husband, however, owed her no duty enforceable in law or equity to pay the mortgages to relieve her dower. The most that can be claimed is that, the mortgages having (as is assumed) been executed to secure his debts, and he having procured the wife to join in them and pledge her right for their payment, he owed her a moral duty t-o pay the mortgages, and thereby restore her to her original situation. But according to our decisions no legal or equitable obligation of which the law can take cognizance was created in favor of the wife against the husband or his property by these circumstances. *• * * There is lacking in this case the essential relation of debtor and creditor between the grantor and a third person seeking to enforce such a covenant, or such a relation as makes the performance of the covenant at the instance of such third person a satisfaction of some legal or equitable *362duty owing by the grantor to such person, which must exist according to the cases in order to entitle a stranger to the covenant to enforce it. It is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for liis. benefit, or at least such benefit must be the direct result of performance, and so within the contemplation of the parties, and, in addition, the grantor must have a legal interest that the covenant be performed in favor of the party claiming performance. The application of the doctrine of Lawrence v. Fox (20 N. Y. 268) to this case would extend it much further than hitherto, and this cannot be permitted in view of the repeated declarations of the court that it should be confined to its original limits.”
While, therefore, in view of the strong equities in plaintiff’s favor, we regret that the action is not sustainable in her behalf, this is to some extent lessened by the view we entertain that the husband may have the right in his own name and on his own behalf to secure some of the recompense to which he is entitled, and which, under the contract, he intended to secure for the benefit of his wife.
The judgment must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., Rumsey, and Williams, JJ., concurred; Ingraham, J., dissented.
Rumsey, J.:The contract upon which this action was brought is expressed in a letter signed by the defendant and addressed to Mr. Robert G. Dun. So much of it as is material to the case is as follows : “ It is understood between Mr. R. D. Buchanan and myself that, in the event of the success of the proceedings now pending, or which may be taken to practically set aside the thirty-fifth section of the will of my late uncle, Samuel J. Tilden, in view of the assistance looking to that end which has been and may be rendered by Mr. Buchanan, as well as yourself, that I will, and hereby do become responsible for the payment to Mrs. Adelaide E. Buchanan, or her order, in the sum of fifty thousand dollars.”
The circumstances under which that contract was made were that an action was then pending to set aside the thirty-fifth section of the will of Samuel J. Tilden. The defendant was the principal *363party having the management and control of that action, and lie-needed money to enable him to proceed with it. This money could only be got from Dun through the agency of Buchanan, who was the plaintiff’s husband. Mrs. Buchanan, the plaintiff, was the adopted daughter of one of Mr. Tilden’s brothers. The result of the action, whatever it might be, would have been of itself of no. importance to her, and all that she could get out of the estate, whatever might be the result of it, was the sum of money which was agreed to be paid by this letter. It is said, and it must be assumed,, that after the writing of this letter Mr. Buchanan rendered some service, and it is conceded that Mr. Dun advanced to the defendant-some $20,000, which was to be repaid to him with interest.
The action was brought to compel the payment by the defendant of the $50,000 to Mrs. Buchanan, and the only question presented is whether, under all the circumstances, Mrs. Buchanan had a cause of' action arising out of the contract which is stated above.
It is claimed by the plaintiff that her right to sue stands upon the-principle enunciated by the Court of Appeals in Lawrence v. Fox (20 N. Y. 268), which is that, where a promise is made to one party for the benefit of another, the person for whose benefit the promise-is made has an action against the promisor. The facts of that case--were, that the promisee loaned Fox a certain sum of money; thepromisee also loaned to Lawrence an equal sum of money, and, in consideration that the promisee should loan the money to Fox, Fox agreed to pay it to Lawrence. In the last analysis the ground upon which the right to maintain the action was put was that there was. a novation. But such a ground necessarily involves the proposition that there is some duty owing from the promisee to the person for-whose benefit the promise is made. The existence of that ground has since been recognized in all the cases, and unless some such duty has been shown to exist which the law recognizes, the person for whose benefit the contract is made is not permitted to maintain-an action.
The rule which has finally been laid down upon that subject is as follows : Where a promise is made by one person to another for the-benefit of a third, in the absence of any liability of the promisee to such third person, he cannot enforce the promise. (Townsend v. Rackham, 143 N. Y. 516.) In that case Judge Peckham, referring *364to Lawrence v. Fox and subsequent cases upon which the right of a third person to sue have been based, says: “ In none of them is there an intimation that the action could be sustained by the third person in the absence of any liability in his favor due or to grow due from the one to whom the promise was made.” Judge Allen lays down the rule that, to enable the third party to bring an action on such promise, there must be some obligation or duty owing from the promisee to such third party which would give him a legal or equitable claim to the benefit of the promise or an equivalent from him personally. (Vrooman v. Turner, 69 N. Y. 280, 284.)
An authority precisely in point in this case is Durnherr v. Rau (135 N. Y. 219). In that case Emanuel Durnlierr, the husband of the plaintiff, had deeded to the defendant certain lands, in which deed the wife did not join. The defendant, the grantee, covenanted in the deed to pay all the incumbrances' on the premises by mortgage or otherwise, and it was expressly declared in the deed that the wife reserved her right of dower in the premises. The defendant, upon being applied to, refused to pay the amount of the wife’s right of dower and permitted the mortgages in which she had joined to be foreclosed, thus cutting off her dower. An action was brought for the damages, and the court held that there was no right of action in the plaintiff, because there was, on the part of the husband, no legal or equitable obligation of which the law could take cognizance in favor of the wife to protect her right of dower, for the reason that he owed her no duty enforcible in law or in equity to relieve her dower from the mortgages. „ The rule there is, that to permit the third party to enforce such a promise, the promisee must have a legal interest that the covenant be performed in favor of the party claiming the performance. It is quite clear that the right of dower of the wife, even before the death of the husband, was, if not an estate, certainly an incumbrance on the premises conveyed to Rau, and was strictly within the terms of this conveyance to pay incumbrances on the premises by mortgage or otherwise. (Youngs v. Carter, 10 Hun, 194; Mills v. Van Voorhies, 20 N. Y. 412.) In Youngs v. Carter (supra) it was held that there was a moral duty on the husband to do nothing by way of depriving his wife of that right. If, therefore, a moral obligation on the part of the promisee is sufficient to permit the enforcement of such a contract, *365it would seem tliat the decision in the case of Durnherr v. Rau should have been different from what it was. But it is quite clear that the obligation, as expressed in all the, cases cited above, must be a legal or equitable one. Such is the express holding of the court in Durnherr v. Rau, and in the other cases which have been cited. The courts have expressly declared that Lawrence v.-Fox will not be extended to any case which did not come precisely within the rules above stated. (Pardee v. Treat, 82 N. Y. 385.)
It has been claimed that this case comes within this rule, because Buchanan, being the husband of the plaintiff, there was a moral obligation resting upon him to support and maintain his wife, and that for that reason this promise can be enforced. It is quite true that the husband is uiider an obligation to support his wife, and it may be that any contract which he makes with a third party, having for its object the carrying out of that obligation, would be enforced by the courts. But certainly the liability of the promisor in such case will go no further than the extent of the obligation of the promisee. There is no obligation, legal or equitable, here on the part of the husband towards the wife, to entitle her to the performance of this contract. This was not a contract for her support, nor was it one to do anything which, under any circumstances, the husband could be compelled to do. It was simply an obligation on the part of the defendant to pay to the plaintiff a sum of money as an independent fortune, for her separate estate, in case the husband rendered some service to him. So far as the plaintiff and her husband were concerned, as to this contract, there were no legal relations between them. They occupied no different relation from that of any other man and woman, because the husband was under no obligation in any way to obtain for his wife a separate estate, or to do anything for the benefit of her separate estate, and this was simply a contract on the part of the defendant to give her a separate estate, and not to do anything which the husband was called upon to do by way of her support, or to relieve him in any way from the duty which the law put upon him to support his wife. That duty, so far as appears, he Avas performing, and there was, therefore, no legal or equitable claim Avliich the plaintiff had towards him, Avhicli he had not performed, that could serve as a basis for the novation Avliich must lie at the foundation of this cause *366of action. A man is surely under no obligation to do any act to create a separate estate for bis wife, however strong his obligation may be to support her.
There is no case of authority in this State where this question has been raised in which it has been held that the moral obligation under which a husband lies to support his wife is sufficient to enable her to maintain an action upon any such contract as this. It has been shown by Mr. Justice O’Brien that the rule has not been extended in this State so that a contract resting upon that obligation will be enforced. The cases cited by the respondent do not establish the existence of any such rule. They are based upon the case of Dutton v. Poole (2 Levinz, 210). Of that case it may be said in the first place that it has been repudiated by the English courts by which it was decided (Tweddle v. Atkinson, 101 Eng. C. L. 393) and it is no longer authority in that country.
The case of Shepard v. Shepard (7 Johns. Ch. 57) does not sustain the respondent's contention. The plaintiff in that case was the widow of Hazel Shepard. Before her marriage she had made a contract with her husband by which he assigned fifty acres of land out of which her dower should be taken, and she released her dower in all other lands owned by her intended husband, and he covenanted that she should have her dower in that particular land. After the marriage, Hazel Shepard conveyed to her another lot of land to make provision for her support when she should become a widow. The defendant was the son of Hazel Shepard. After the execution by the husband to the plaintiff of the second conveyance, he released the same premises to his son, which before he had conveyed to the plaintiff, and received from his son, the'defendant, a deed by which the son released to the father the same premises during his life and covenanted with the father that he would pay to the plaintiff during her widowhood $60 annually or $400 in a lump sum, upon condition that she would release to the defendant all her right as widow of' Hazel Shepard, or by virtue of any deed made by him to her, to the lands of Hazel Shepard. Hazel Shepard died, leaving the plaintiff, his widow, without any means of support exce23t the covenant of the son or her right to the dower in the fifty acres of land. She offered to release her right of •dower to the son and demanded payment of the annuity or the sum *367of $400, and upon that being refused brought her action in the Court of Chancery to compel the defendant, her son, to pay her the money he had agreed to pay, or to have her dower assigned to her out of the lands of her husband pursuant to his covenant. The chancellor found as a fact that the son took the release from his father without any consideration and with notice of the deed previously made to the plaintiff after marriage; and he held that, although that deed was void in law, it was good in equity and gave to the plaintiff a sufficient interest in the premises to permit her to maintain an action upon the covenant made for her benefit with her husband as a consideration for the transfer and the release of her dower. That was the point on which the case turned; but the chancellor, having decided the case on that ground, then goes on to say that, without referring to the deed made after her marriage, the relationship and obligation of the husband, and the fact that the covenant was made by the son to the father for her benefit, were sufficient to enable her to maintain the action because the release of the defendant from his covenant by Hazel Shepard was fraudulent and void as against her.
There was on the part of the husband in that case an express obligation arising out of his ante-nuptial contract that his wife should have dower different from and additional to that arising from the marital relation, which clearly was sufficient to support the action within the case of Lawrence v. Fox, as limited by the later cases, and, therefore, the case might be supported on the second ground stated by the chancellor within the facts as they appeared; but it was not decided upon .any such principle, which was not necessary to be considered. It is noticeable that while that case has been frequently followed it has always been upon the first point decided, and never upon the last dictum. (See Hunt v. Johnson, 44 N. Y. 27, and other cases.)
A careful examination of the cases will show that since Lawrence v. Fox has come to be carefully examined, and its limitations clearly understood and expressed, no contract of the nature of the one enforced there has been permitted to be enforced by the party for whose benefit the action was brought unless he could show that there was some enforcible, legal or equitable obligation due, or to become due, to him from the promisee in the contract upon which *368he based his action. This condition of affairs clearly did not exist here, and for that reason this judgment should be reversed.
Van Brunt, P. J., Williams and O’Brien, JJ., concurred.