Petze v. Leary

GAYNOR, J.:

If the defendant's contract had been made after the plaintiff's contract of service with the corporation, it would be without consideration to the defendant and void, for the plaintiff's agreement to do what he was already bound to do by the prior contract wou1d be no legal consideration (Carpenter v. Taylor, 164 N. Y. 171).

But the allegation is that they were made simultaneously. Does that make a difference % The essence is the same. There is. no difference in respect of the consideration to say,. “ I will give you $1-00 if you perform your contract of service made with B yester-* day,” or “ I will give you $100 if you perform your contract of service made with B this same instant:” ' In. each ease the consideration for your promise is that your promisee perform an existing Contract obligation of his to a third person. That .obligation exists when you complete your promise, whether it be a day old or comes into, existence concurrently with your promiseit exists at ' the time your promise takes effect.

If the making of the .contract by the plaintiff with the corporation had been the consideration to the defendant for the making of the contract by him with-the plaintiff, or, conversely, if the plaintiff had been induced to enter into his contract with the .corporation, by the contract;of the defendant with him, there wotild be a legal consideration. But that is negatived by the allegation of the complaint that the consideration was that the plaintiff should faithfully perfoim-his contract of service with the corporation—not that he. shotdd make if- ‘ Tiffs excludes any .other or further consideration, for it is alleged to be the consideration.

The making of the., two contracts simultaneously might enable a finding of fact to be made that the consideration or inducement to the defendant to make his contract was the making of the other contract by the plaintiff, but we have not to do with, a question of evidence but with one of ’ pleading; and we may not assume that that was the consideration, for the complaint alleges that the consideration was another thing, i. e., that the plaintiff should faithfully keep his contract of service. If the complaint had alleged .that each contract was the consideration for the other, this question of pleading would not be here, although a question might arise on the trial whether such consideration did not need to be expressed in the contract with the defendant in order to be proved.

The interlocutory judgment should be affirmed.

Hlrsohberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.