The recitals of consideration in the subscription here involved are clearly insufficient to bind the donor. The complaint alleges that “ upon the said subscription and agreement, the said Beth Israel Hospital Association proceeded in its humanitarian work * * * expended large sums of money and incurred large liabilities and has otherwise duly performed all the conditions on its part to be performed.” The writing required the hospital to do nothing. Consideration must be found, if at all, in the allegation that upon the said subscription and agreement the hospital association “ proceeded in its humanitarian work * * * expended large sums of money and incurred large liabilities.” This is nothing more than an allegation that the hospital has carried on the general purposes for which it was organized.
*556In Allegheny College v. National Chautauqua County Bank (246 N. Y. 369) Chief Judge Cardozo said: “ Certain, at least, it is that we have adopted the doctrine of promissory estoppel as the equivalent of consideration in connection with our law of charitable subscriptions. So long as those decisions stand, the question is not merely whether the enforcement of a charitable subscription can be squared with the doctrine of consideration in all its ancient rigor. The question may also be whether it can be squared with the doctrine of consideration as qualified by the doctrine of promissory estoppel.”
An analysis of that case will disclose that the statement quoted must be regarded as dictum. The promisor wished to have a memorial to perpetuate her name, and she imposed the condition that the “ gift ” should “ be known as the Mary Yates Johnston Memorial Fund.” The court said: “ The moment that the college accepted $1,000 as a payment on account, there was an assumption of a duty to do whatever acts were customary or reasonably necessary to maintain the memorial fairly and justly in the spirit of its creation. * * * We think the duty assumed by the plaintiff to perpetuate the name of the founder of the memorial is sufficient in itself to give validity to the subscription within the rules that define consideration for a promise of that order.”
A consideration of the cases leading up to Judge Cardozo’s statement in the Allegheny Gollege case shows that in each instance something specific was done in reliance upon the promise, an obligation incurred, or steps taken to carry out the object of the subscription.
The first case considered was Barnes v. Perine (12 N. Y. 18) wherein the defendant was a member of a religious society which owned a lot with a church thereon. He subscribed, with others, a writing by which he promised to pay $150 to the trustees of the society or a building committee towards a fund of $5,000 for the erection of a church on the site of the old one and he afterwards took part in several meetings of the members of the society and the subscribers to the fund at which a building committee was appointed and resolutions adopted requesting the trustees to dispose of the old church and directing the building committee to erect a new one on its site for the use of the congregation with the consent and advice of the trustees. The evidence proved that the society removed the old church and erected a new one and the defendant was held liable for the amount of his subscription.
The case of Presbyterian Society v. Beach (74 N. Y. 72) involved a subscription paper by which the subscribers agreed to pay the sums set opposite their names to the treasurer to be appointed by *557them for the purpose of building a Presbyterian church edifice; a treasurer was duly appointed and at meetings at which defendant was present and expressed no dissent the religious society was organized, trustees elected, committees appointed and the work commenced and carried through with defendant’s knowledge and in reliance upon the subscriptions. In subsequent proceedings the plaintiff was incorporated. It was held there was a good consideration for the undertaking of the defendant.
In the third case cited by Chief Judge Cardozo, Roberts v. Cobb (103 N. Y. 600), it appeared that persons interested in the First Baptist Church of Tarrytown had been engaged in building a church edifice and there was a mortgage on the church property upon which there was. due $15,000. The pastor of the church called upon the defendant’s testatrix, a member of the church, and requested her to make a contribution. She promised to contribute $2,500 in cash toward the payment of the mortgage if the pastor would secure pledges for the balance of $12,500, and he promised to make the effort. He at once set about raising the requisite sum and secured pledges for that amount. After having done so he called upon defendant’s testatrix and she, finding it inconvenient to pay cash in discharge of her subscription, executed a note for $2,500. She subsequently paid $500 thereon and in an action for the balance it was held the note was based on a sufficient consideration. It was pointed out that the deceased promised to give the pastor $2,500 if he would procure subscriptions for $12,500; he accepted the offer and performed the condition, and thus it was held there was adequate consideration to uphold the promise.
The last case referred to was Keuka College v. Ray (167 N. Y. 96). There a charter had been granted in 1892 to the college provisionally incorporating it until the requirements should be fully met. The president of the board of trustees endeavored to procure subscriptions to the amount of $100,000 which the law required as a corporate fund in order that the college might receive - a permanent charter. He approached the defendant and informed him concerning the college project, and that another individual had promised, in the event of $20,000 being raised within a given time, to give $5,000 to the fund; $7,000 or $8,000 of the $20,000 had already been subscribed and the college was endeavoring to raise the balance; the defendant gave a note for $500 and the college was successful in meeting the conditions of the benefactor through the subscriptions to the amount of $20,000 being made. It was held that there was ample consideration for the note. Judge Gray, writing for the court, said: “ The discussion is reduced simply to this, whether the agreement which is sought to be enforced *558and which is a voluntary promise on the part of the defendant, expressly, or impliedly, either imposes upon the promisee some obligation which is assumed, or requests of the promisee the performance of services, which are to be performed upon the strength of the promise. If those conditions are met, then, within the rule of law, there is a consideration which will suffice to uphold the agreement, or the promise.”
The cases in foreign jurisdictions which have been called to our attention as supporting the theory of promissory estoppel as equivalent to consideration for charitable subscriptions all involve the promotion of a special purpose, as distinguished from the general charitable purposes, of the donee.
Subscriptions to charitable funds are usually induced by the noblest motives and are generally given with honest intent of fulfillment. Circumstances may develop which render it impossible for the donor to carry out his intention. In many instances, however, opportunity for exploitation and self-glorification is presented and there is no genuine desire to promote the purpose for which the subscription is solicited. When the excitement and the shouting ceases, the project fails, unless some way is found to make subscribers live up to their promises. The courts, in their efforts to hold such subscriptions binding, appear to have adopted theories and reasoning completely out of harmony with the fundamental concept of consideration. In 1 Williston on Contracts ([Rev. ed. 1936], § 116) it is said: “ The view most commonly held is that such a subscription is an offer to contract which becomes binding as soon as the work towards which the subscription was promised has been done or begun, or liability incurred in regard to such work on the faith of the subscription.” Recognizing the fact that a charitable subscription is intended as a gift and not as a bargain it may well be that the time has come for the Legislature to say that a charitable subscription requires no consideration to make it enforcible. We, however, find no occasion to extend the principle of promissory estoppel, and think it should be limited to those instances where a specific obligation contemplated by the donor and donee is incurred in reliance upon the subscription.
The order and judgment appealed from should be affirmed.
Judgment and order reversed, with costs, and plaintiff’s motion granted to the extent of striking the fifth defense from the answer.