(dissenting):
The respondent states the question submitted for decision as follows : “ Where a 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 his wife, is the wife entitled to enforce payment ? ” This, with the addition that the wife did not join in the agreement, and that there was no promise made directly to her, is an accurate statement of the question presented. The letter, which contained the evidence of the promise, is one written to Robert Gr. Dun by the defendant, in which the defendant says: “ It is understood between Mr. R. D. Buchanan and myself that in the event of the success of the proceedings now pending, or any 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 do hereby become responsible for the payment to Mrs. Adelaide E. Buchanan, or her order, of the sum of fifty thousand dollars.” The services that Buchanan rendered to the defendant were in procuring Dun to loan to the defendant certain sums of money to be used in the litigation then pending to set aside the thirty-fifth section of the will of Samuel J. Tilden, the defendant being one of the next of kin of the said Til-den, and being entitled to a share in his estate in case this clause of the will was held void. This letter -was written in pursuance of a verbal agreement made between the defendant and Buchanan, by which the defendant, having asked Buchanan to induce Dun to make him further advances, said thatjhe had to have some more money, and had to have it right away ; and in order to get the money and have it light away, he, on his own personal behalf, having nothing to do with his brothers or sisters in any sense, would obligate himself personally to pay plaintiff $50,000, and to evidence that understanding, this letter was written. This letter was delivered to Dun and Dun subsequently advan'ced to the defendant over $10,000, which advances were secured by promissory notes of the defendant with interest, and they have since been repaid to Dun.
*369Plaintiff, as I understand, concedes that she is not entitled to recover on account of any promise having been made by Tilden to Dun as a consideration of this loan of money, but rests her right to recover upon the services which Buchanan rendered to the defendant in procuring from Dun the advance of this money, the value of such service being fixed by the agreement between Buchanan and defendant at this sum of $50,000, and the defendant promising with Buchanan that he would pay that sum to plaintiff, Buchanan’s wife.
As before stated, the wife was not a party to the contract. There is no evidence that she had any knowledge of it at the time it was made, and as between her and the defendant there was no consideration for the agreement, and no promise was made with her. Dun himself swears that he loaned this money, induced by a statement that Tilden made to him (Dun) “ that if he was successful in breaking this will that Addie Tilden (the plaintiff) would share and share alike with all the rest of the heirs; that was the intentionthat “ it was his (the defendant’s) saying that Addie Tilden would come in share and share alike with all the rest of the heirs if he succeeded in breaking the will. * * * and it was subsequently to that conversation that he (defendant) wrote this letter.” The witness says that he cannot remember distinctly whether he talked with Buchanan about it or not, but that Buchanan first broached the subject to him of loaning this money to the defendant. The services that Buchanan rendered seem to have been his going to Dun and telling him that if he (Dun) advanced the money, and if the will was broken Mrs. Buchanan, the plaintiff, would come in share and share alike with the rest of them ; and upon the faith of that promise getting from Dun these various sums of money.
The right of the plaintiff to sue upon such a promise, made by her husband upon a consideration furnished by the husband, must depend upon the existence of a debt or duty owing by the promisee (the husband) to the party claiming to sue upon the promise (the wife). “ To give a third party who may derive a benefit from tire performance of the promise, an action, there must be, first, an intent by the promisee to secure some benefit to the third party, and, second, some privity between the two,.the promisee and the party to be benefited, and some obligation or duty owing from the former *370to the latter, which would give him a legal or equitable claim to the benefit of the promise, or an- equivalent from him personally.
“ It is true there need be no privity between the promisor and and the party claiming the benefit of the undertaking, neither is it necessary that the latter should be privy to the consideration of the promise, but it does not follow that a mere volunteer can avail himself of it. A legal obligation or duty of the promisee to him will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the Obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor. A mere stranger cannot intervene and claim, by action, the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement.” (Vrooman v. Turner, 69 N. Y. 283.) In that case, King v. Whitely (10 Paige, 465) and the cases that have followed it was held not to be overuled by Lawrence v. Fox. It is not claimed in this case that there was any enforcible debt or obligation existing in favor of the plaintiff against the promisee which, within the rule thus established, would entitle the plaintiff to maintain the action. The plaintiff, however, relies upon a series of cases in which the principle has been established that where a parent has made a contract with a third party by which such third party is to pay a sum of money to his child, the child can enforce that agreement at law. These cases have generally proceeded upon the theory that the agreement was one by Avhich the parent was making a distribution of his estate and property, and that where he gave to one child a certain portion of his property upon the promise of that child to pay to his other child or children a certain proportion to it, the other child or children could enforce that agreement. This principle seems to have been first discussed in the ease of Dutton v. Poole (2 Levinz, 210), decided in the time of Charles II. There the father of the plaintiff’s wife, being seized of certain lands, was paid to cut £1,000 worth of timber to raise a portion for his daughter, the plaintiff; and the defendant, who was the heir at law of the father, promised the father that he would pay the daughter £1,000. It was held that an action • brought by the *371daughter against the sou after the death of the father would lie. Several eases have followed that decision sustaining the right of the plaintiff to enforce the agreement upon the ground that there was a duty on the part of the parent to support the child, and that a contract made with a third party by which such third party became obligated to pay to the child a sum of money for that purpose could be enforced by the child, the duty owing by the parent- being sufficient to give him a legal or equitable claim to the benefit of the promise. That a parent was under such an obligation to a child being thus conceded, and being sufficient to entitle the child to enforce the promise made by the parent for its benefit, the question-is whether or not the husband and wife stand in the same relation to each other, or, in other words, whether the husband is under such an obligation to his wife to support her as would give her a legal right or equitable claim to the benefit of a promise made by the husband for her. Upon principle it seems to me that this should be answered in the affirmative. The existence of a legal -obligation of the husband to support his wife is certainly as binding as that of a parent to support a child. The husband is liable for the necessities furnished to the wife in case he refuses to provide a proper support for her, and while living together the husband is liable for the supplies purchased by the wife in his name for the support of the household. Upon divorce or separation the court has power to decree a proper support for the wife, and upon the death of the husband the wife is entitled to dower in his real estate. The law, therefore, recognizes this obligation of the husband to provide, both during coverture and after coverture, for the wife a reasonable support, and will enforce the obligation existing upon the husband. Certainly thé moral obligation of a husband to support his wife is as strong as that of a parent to support his child, and we have the great authority of Chancellor Kent in favor of this right. Thus, in the case of Shepard v. Shepard (7 Johns. Ch. 63), where the plaintiff conveyed land to his son for a nominal consideration, and the son (the defendant) covenanted with the husband that he would pay an annuity to the. plaintiff (the wife) during her widowhood the. sum of $60, or, at his election, the sum of $400, in two equal annual payments, to commence from the day of the death of the husband, the chancellor said: “ The relationship between the bus-*372band and wife was sufficient to entitle the plaintiff to her action upon the covenant to her husband, and which was made for her benefit. The consideration inured from the husband, and arose from the obligations of that relation.”
This case also holds that the natural affection of a husband for his wife, and the desire to make a sure maintenance for the wife in case she should survive the husband, is a meritorious consideration for a deed from the husband to the wife so as to justify a court of equity in sustaining and giving effect to the deed made directly between the husband and wife. And this case was cited with approval in Hunt v. Johnson (44 N. Y. 33), thus establishing the principle that the obligation of a husband to support his wife is sufficient to constitute a valuable consideration in a transaction between them, which a court of equity will enforce, notwithstanding it is void at law. And in the case of Todd v. Weber (95 N. Y. 181) it was held that a promise made by the father of an illegitimate child to the child’s relatives that if they would support and educate the child they would get back what money they had spent, because he intended to do well for her in his will, so that “ them that do well by her will he well paid,” was a contract upon which the child could sue, as it was made for her benefit as his child, and the court sustain an action to recover from the executors of the father the amount that the child’s relatives had paid out for her support and education.
The case of Durnherr v. Rau (135 N. Y. 219) does not apply. There was no agreement in that case by which the defendant promised to pay to the wife any sum of money due him, but a simple declaration in a deed that the wife of the husband, who was the plaintiff, reserved her right of dower in certain premises that the husband conveyed to the defendant. The right of dower was lost- by a foreclosure of mortgages upon the property, which were superior to the wife’s right of dower ; and the court held that the covenant reserving the right of dower was simply as to the right of dower in the land conveyed, which was the land subject to the mortgage, and that no obligation existed between the husband and the wife by which the husband was bound to pay off the mortgages so that her dower should be superior to them. Consequently, no-right of the wife existed to call upon the grantee of the deed to-*373perform any obligation in her favor that the husband was not bound to perform.
Here an entirely different question is presented. Services were rendered by the plaintiff’s husband. For the rendition of these services the defendant agreed to pay to the plaintiff a sum of money. Whatever right the plaintiff had to recover from the defendant the value of his services to the defendant he intended should vest in his wife, and that intention was expressed by the promise that the defendant made by which the value of the services rendered was liquidated, and tlio defendant promised that he would pay it to the wife. The intent, therefore, was clear to vest the wife with this demand that existed in favor of the husband as against the defendant. And the duty owing from the husband to the wife was sufficient to give her a legal claim to the benefit of the promise.
I think, therefore, that this judgment is right and should be affirmed, with costs.
Judgment reversed and new trial ordered, costs to appellant to abide event.