I cannot concur in the conclusion reached by Mr. Justice Ingraham in this case. It seems to me he not only entirely overlooks what, the parties consented to try, irrespective of the pleadings in the action, but he also overlooks the testimony of the witnesses as to the consideration of the instrument set out in the complaint.
*115The action, it will be remembered, was originally commenced against the present defendants and one Leopold Redelsheimer, as president of the Grand Lodge, District No. 1, Order Iiesher Shel Barzel. Redelsheimer admitted the liability of the lodge, paid the amount called for into court, and thereupon an order was made discontinuing the action as to him. The plaintiff and the present defendants then entered into a stipulation, “ That the judgment to be entered herein shall provide for the payment of the said fund so deposited in this action to the party who shall succeed in this action.”
At the opening of the trial the learned trial justice, evidently appreciating the crude and imperfect condition of the complaint, and the absence therein of necessary allegations to enable the parties to try the only issue for trial, viz., which of the parties was entitled to the money which had been paid into court by Redelsheimer, refused to proceed-with the trial unless both parties conceded that the case was properly in court upon proper pleadings, and that such concession was then made is clearly evidenced by the following extract from the record: “ The Court: It is conceded, then, by counsel here, that the question to be tried arises between the plaintiff and the two defendants, Rosa Enoch and Joseph E. Enoch, as to who is entitled to" the fund of $450, payable from the Lodge, and that the pleadings shall be deemed to be amended accordingly.”
To this the plaintiff’s counsel replied: “ Before we go further there is a further stipulation,” and defendants’ counsel said : “ Before we go into that I am going to make a preliminary motion.” The court responded: “ I shall decline to try this case unless you both concede that the pleadings are properly in court for that purpose,” and defendants’ counsel answered : “ I concede all your Honor has said, but what I claim is that there is no cause of action against these defendants.”
Further discussion was then had, at the conclusion of -which the learned trial justice announced that he would hear the evidence. When he made this announcement the defendants’ counsel said: “I ask your Honor to give me the benefit of an exception.” The trial justice answered: “ Always where I deny a motion there will be an exception.”
Up to this time, the defendants’ counsel had neither made an *116objection nor a motion and there was nothing to which he could or did take an exception. He had acquiesced in the statement of the court that the issue to be tried was as to which of the parties was entitled to the fund of $450, coming from the lodge, and which had been paid into court and that the pleadings should be deemed amended for that purpose.
The trial then proceeded and the evidence introduced by the plaintiff tended to' establish the execution, delivery, assignment and non-payment of the instrument mentioned in the complaint, and at the close of plaintiff’s ease, not a single objection had been .made or an exception taken by defendants’ counsel.
After the plaintiff had rested, the defendants’ counsel, moved to dismiss the complaint “ upon the specific ground that there is no proof of any delivery of the instrument or of the assignment.”
The trial justice did not pass upon this motion, but announced that he would reserve his decision and take the evidence. To this disposition, of the motion the defendants’ counsel made no objection, ' and he must, therefore, be held to have acquiesced in it. All o.f .the testimony on the part of the defendants was substantially directed towards establishing that there was no consideration for the defendants’ promise and that the instrument referred to, for that reason, was invalid .and could not be enforced. This was the real issue which was tried, and it seems to me that whether the plaintiff had an equitable lien upon this fund, or an equitable assignment of it, are questions which are immaterial, and it is unnecessary, therefore", to consider them.
The money, as I have said, at the time of the trial had been paid into court. Both parties claimed it, and for the purpose of having their respective claims settled and' determined, had stipulated that the "judgment should provide for the payment of that money to the one who should succeed upon the trial, and they had, in open court, agreed that the pleadings should be amended so that that question could be séttled and determined. At the conclusion of the trial, the learned trial justice'very properly, as it seems to me, held that the plaintiff was entitled to be paid, from the fund in court, the amount which the defendants had promised to pay. The defendants had promised to pay'on the happening of a ¿ertain contingency — the death of Edward Enoch. That contingency had * *117occurred. They had promised to pay from either one of two funds, and the uncertainty which theretofore existed as to which fund they were to pay from, had become, by that payment into court, a certainty.
There was a valid consideration for the defendants’ promise. The trial court found that, at the time the instrument set out in the complaint was made, Edward Enoch was indebted to A. Wolfson in the sum of $450, and that the consideration of the instrument was that debt and the forbearance of Wolfson from collecting it. There is an abundance of evidence to sustain this finding. An agreement to forbear, either absolutely or for a certain time, to enforce a legal or equitable claim is a sufficient consideration for a promise of the debtor or of a third person to pay the debt. (Mechanics & Farmers' Bank of Albany v. Wixson, 42 N. Y. 438, and cases there cited.)
One of plaintiff’s witnesses testified that, prior to the making of the instrument, Wolfson indorsed a note for Edward Enoch for $450, which was discounted and subsequently paid by Wolfson.
Another witness testified that he was present when the instrument was signed, and he was then asked : “ Q. Did you hear anything said at that interview about what the note was given for ? A. I was sent for that purpose, as a friendly act to Mi-. Wolfson and Mr. Enoch. The note was given for a debt of $450. * * * Q. You say that yon were called in to do a friendly act for them ? A. Yes, .sir. Q. Who told you that the amount of $450 was due? A. Mr. Wolfson and Mr. Enoch, both. * * * I say there had been some conversation that Mrs. Enoch and Joseph Enpoh were to execute the note because Edward Enoch owed Wolfson $450.”
This testimony was not disputed, neither was the fact of the execution and delivery of the instrument and its non-payment.
For the foregoing reasons I think the judgment should be affirmed.