Plaintiff’s amended complaint has been dismissed for insufficiency. By it he seeks to recover under a bond executed under seal by the Collar City Athletic Club, Inc., of the city of Troy, N. Y., as principal, and by the defendant as surety, to the State Athletic Commission of the State of New York.
From said complaint it appears that the club filed the requisite statutory bond for a license under the provisions of chapter 912 of the Laws of 1920, as amended by chapter 714 of the Laws of 1921, being entitled: “An act allowing and regulating boxing, sparring and wrestling matches, and establishing a state athletic commission, and making an appropriation therefor.” A license was then *154issued to the club and thereupon a further bond under seal, being the bond involved herein, executed by the club as principal and the defendant as surety, was filed with the Commission.
Plaintiff conducts a general printing business in the city of Troy, N. Y., and during the period covered by the license and bond the club became indebted to plaintiff for services and materials incident to the furnishing of admission tickets, advertising cards, circulars, etc., in connection with exhibitions conducted by the club. It is alleged that the plaintiff furnished said services and materials having knowledge of and in reliance upon said bond; that the club has failed to pay plaintiff therefor; that the Athletic Commission has determined the amount owing by the club to plaintiff thereon and has made demand upon the club to pay the same; that plaintiff has procured a judgment therefor against the club, no part of which has been paid, and that the defendant herein has refused to comply with the terms and conditions of said bond.
So far as material, the terms of the bond are as follows:
“ Whereas, the said principal has made application to the State Athletic Commission to dispense with the posting of forfeits with the State Athletic Commission applicable to boxing, sparring or wrestling matches or° exhibitions, authorized to be conducted by the said principal, under the rules and regulations of the said State Athletic Commission by the filing of these presents and said application having been granted,
“ Now, therefore, the condition of this obligation is such that if the said principal will, upon demand of the State Athletic Commission, immediately deposit with the said State Athletic Commission the amount of any forfeit or other indebtedness that may be determined by said State Athletic Commission to be applicable to any boxing, sparring or wrestling match or exhibition conducted by the said principal, and if said principal will, upon the demand of the said State Athletic Commission pay and discharge any and all indebtedness or liability by said principal due or owing to any person, firm or corporation by reason of any matter or thing arising out of any sparring or wrestling match or exhibition conducted by the said principal during the period of its license aforesaid, then this obligation to be void, otherwise to remain in full force and effect.”
The instrument is quite similar in its purport to the bond under consideration in Matter of Bedini v. Hodges (238 App. Div. 530). In that case a boxer was engaged by an athletic club to participate in a boxing match and sought mandamus in order to compel the Athletic Commission to determine the amount due him from the club, and to direct payment therefor. Mandamus was refused on the ground that the petitioner had no clear legal right thereto, *155the opinion of the court stating that there is no provision in the law requiring a bond conditioned upon the payment by the principal of its obligations.
The reasoning of that case is applicable here. It is a correct interpretation of the statute and an accurate statement of the principles of law involved.
The bond required by the statute is to be conditioned for the faithful performance by the licensees of the provisions of the act and the rules and regulations of the Commission. Such bond has been given in addition to the bond in suit. The Commission has no power other than that conferred by the statute. (See Davis v. Rochester Can Co., 220 App. Div. 487; affd., 247 N. Y. 521; Post v. Doremus, 60 id. 371; Matter of Bedini v. Hodges, supra; Mittnacht v. Kellermann, 105 N. Y. 461, and cases cited therein.) Hence it had no power to require a bond containing the additional condition here in question, and not authorized by the statute.
In order to recover, plaintiff must bring himself within the principles set forth in the familiar case of Lawrence v. Fox (20 N. Y. 268). He is a third party seeking to recover upon a promise made to another for his, plaintiff’s, benefit.
In Vrooman v. Turner (69 N. Y. 280) it was said: “A mere stranger can not 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. * * * 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;” further, that in every case “ there must be 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.”
In Garnsey v. Rogers (47 N. Y. 233) the court said: “ All that the case of Lawrence v. Fox decides is, that where one person loans money to another, upon his promise to pay it to a third party to whom the party so lending the money is indebted, the contract thus made by the lender is made for the benefit of his creditor, and the latter can maintain an action upon it without proving an express promise to himself from the party receiving the money.”
The following excerpt is from Embler v. Hartford Steam Boiler Ins. Co. (158 N. Y. 431): “ It is not sufficient that the performance of the contract may benefit a third person. It must have been entered into for his benefit and the promisee must have a legal interest that it he performed in favor of the third person.”
*156It thus appears that plaintiff’s case lacks one of the elements essential to recovery. There is no debt, duty or obligation owing by the Commission to the plaintiff to constitute a consideration to support a cause of action in favor of plaintiff against the defendant.
If the undertaking were given in pursuance of the statute, then the statute itself would supply the consideration. (Post v. Doremus, 60 N. Y. 371; Thompson v. Blanchard, 3 id. 335; People v. Metropolitan Surety Co., 211 id. 107.) In the absence of such statutory requirement, and in the absence of any other obligation or duty owing by the Commission to the plaintiff, he occupies the position of a stranger, and may not take advantage of the contract even if its validity be assumed.
In Seaver v. Ransom (224 N. Y. 233) the court enumerated the four classes of cases in which a third person, not a party to the contract, is permitted to enforce it. One of the classes is stated to exist where, at the request of a party to the contract, a promise runs directly to the beneficiary although he does not furnish the consideration. In most of the cases in this class the promisor was in effect a trustee, and the third party was intended as the beneficiary of the trust. (See Johnson Service Co. v. Monin, Inc., 253 N. Y. 417.) Such is not the situation here.
The learned justice at Special Term correctly determined that the amended complaint fails to state facts sufficient to constitute a cause of action. The order dismissing the complaint should be affirmed, with costs.
Heffernan, J., concurs; McNamee, J., concurs in result; Hill, P. J., dissents with opinion, in which Bliss, J., concurs.