dissenting.
I cannot concur in the majority opinion in the view there taken of the issue in controversy or of the facts of the case.
' As appears from the notice of motion instituting the action, the contract sued on was not the lease to Nathan Crockin, Inc., but a subsequent contract alleged in such notice to have been entered into by the defendants, “on or about the * * * day of August, 1912,” by which they “for valuable consideration agreed to pay the rent for the aforesaid premises in accordance with the terms, conditions and covenants of a certain written lease between Nathan Crockin, Incorporated, a corporation and (the plaintiff) said lease being dated on or about January 26, 1912, until such time as you (the defendants) succeed in renting the said premises for the balance of the unexpired term to a tenant satisfactory to me.” Such subsequent contract sued on, as appears from such notice, was not an assumption of the lease to the corporation aforesaid, nor a promise to pay the debt or obligation of such corporation. It was a new and independent contract entered into between the plaintiff and defendants, supported by valuable consideration therefor, as alleged in the notice. It is true the notice refers to the lease to the said corporation but it does so merely as containing a statement of the “terms, conditions and covenants,” in accordance with which the,contract sued on bound the defendants, “until such time as defendants should succeed in renting the said premises for the balance of the unexpired term (the time mentioned in such lease) to a tenant satisfactory to” the plaintiff.
Accordingly, during the progress of the first trial of the case, it clearly appears that the position of the plaintiff was that the evidence showed the existence of the contract sued on as aforesaid independently of the lease aforesaid, except only as that was referred to as evidencing “the terms, con*526ditions and covenants” aforesaid • of the contract sued on during the life of the latter.
And, in my view of it, there was sufficient evidence in the case for plaintiff to support the verdict of the jury on the first trial, which found, in effect, that the joint contract sued on was in fact entered into by all of the defendants as alleged in plaintiff’s notice of motion aforesaid. This being a minority opinion, no useful purpose would be served by setting out in detail my view of the evidence, or by any discussion'of it. .It is deemed sufficient in this dissenting opinion to make the following further statement of the conclusions I reach on certain questions of fact and of my view of the law as applicable thereto :
The evidence, as I view it, shows that upon the faith of said j oint contract the plaintiff looked only thereto and gave up any assertion of claim against the Nathan Crockin, Inc., of liability of such corporation to her under said lease, and the plaintiff allowed the stock of goods oelonging to such corporation to be taken into possession by Lewis & Haskell and to be sold out by the latter without asserting any claim for rent against such goods under the aforesaid lease to the said corporation. This change of staim quo ante of the plaintiff to her detriment, was a sufficient valuable consideration to support the said contract which was sued on. Hamer v. Sedway, 124 N. Y. 538, 27 N. E. 256, 12 L. R. A. 463, 21 Am. St. Rep. 693; Clark on Contracts (3d ed.) p. 134; Halsey v. Peters’ Ex’r, 79 Va. 68.
Further: The evidence for plaintiff in the instant case, as I view it, shows, the testimony for defendants admitted, that the three defendants were the stockholders of the aforesaid corporation, that Crockin in August, 1912, when the contract sued on was alleged to have been made, was negotiating but had not concluded the sale of his interest therein to Lewis & Haskell. They were all three at that time, therefore, interested in freeing the corporation from *527liability to the plaintiff under the lease aforesaid to the corporation to accomplish the non-assertion of such liability by the plaintiff against the assets of the corporation, as was in fact accomplished by the making by defendant of the new contract which was sued on according to the testimony for plaintiff, was a sufficient valuable consideration to support such contract. See 15 L. R. A'. (N. S.) 222, and note on “Interest of Promisor;” also 29 Am. & Eng. Ency. L., 928-930.
For the foregoing reasons I am constrained, with the utmost deference, to dissent from the majority opinion of the court.