Opinion
November 14, 1961
Order entered on December 15, 1960, unanimously modified on the law and on the facts to delete therefrom the second and fourth ordering paragraphs directing summary judgment against the defendants-appellants Lodmer and Wolf; and the judgment entered thereon, on December 20, 1960, modified upon the law and the facts to delete the first decretal paragraph thereof; motion by the plaintiffs for summary judgment against the said appellants denied; summary judgment directed in favor of the said appellants Lodmer and Wolf against the plaintiff dismissing the second cause of action and the complaint herein as against them with taxable costs; and said appellants are awarded $20 costs and disbursements of this appeal. "It is well settled that before a third party can enforce a contract in his favor it must clearly appear that the contract was made and intended for his benefit. * * * The agreement under which the third party claims must clearly express an intention to assume a duty directly to him." (10 N.Y. Jur., Contracts, § 239, pp. 160, 162.) The written contract here, as we construe it, was not one whereby the appellants Lodmer and Wolf intended to or did assume any obligation directly to the creditors of Bal Dolls, Inc. The contract of the said appellants, upon its face, appears merely to have been intended as an indemnity and save harmless agreement in favor of Valentine Dolls, Inc. This being so, plaintiff, a creditor of Bal Dolls, Inc., may not recover upon the contract as a third party or donee beneficiary thereof. (See Snyder Plumbing Heating Corp. v. Purcell, 9 A.D.2d 505, 508; Skinner Bros. Mfg. Co., v. Shevlin Eng. Co., 231 App. Div. 656, 659, affd. 257 N.Y. 562; Leary v. New York Cent. R.R. Co., 212 App. Div. 689, 691; Weinbaum v. Algonquin Gas Transmission Co., 20 Misc.2d 276, 279, affd. 285 App. Div. 818; also French v. Vix, 143 N.Y. 90, 94; National City Bank v. Berwin, 240 App. Div. 550, 553.) Settle order on notice.
Concur — Rabin, J.P., McNally, Stevens, Eager and Steuer, JJ.