235 A.D. 682 | N.Y. App. Div. | 1932
Judgment and order, in so far as it denies motion to set aside the verdict, reversed on the law, with costs, and complaint dismissed, with costs. In so far as it denies the motion for a new trial the order is unanimously affirmed, without costs. The plaintiff seeks to sustain this judgment upon the theory of novation, under the claim that the appellant assumed an original obligation. The contract involved the payment of back salary due to plaintiff from the original obligor and the continuance of plaintiff’s employment for the period of more than one year beyond the time it is claimed that the defendant assumed the obligation. The action was brought against the original obligor upon the original contract and against the appellant upon the theory that it assumed the obligation. Plaintiff’s motion to discontinue the action as against the original obligor was granted at the close of the entire case, and his motion to amend the complaint to allege novation was granted. This amendment, however, was but a characterization of the evidence. The defendant thereupon was permitted to plead the Statute of Frauds, The judgment must be reversed and the complaint dismissed, for the reason, first, that the transaction did not constitute a novation, since the original obligor was not released (Leggat v. Leggat, 79 App. Div. 141; Inman v. Burt Co., 124 id. 73; affd., 195 N. Y. 558; Rogers v. Thompson, 215 App. Div. 541; 20 R. C. L. 360), and, second, because the Statute of Frauds constitutes a complete defense to the new contract. (Tyler v. Windels, 186 App. Div. 698; affd., 227 N. Y. 589; Stearns v. St. Louis & S. F. Ry. Co., [Gen. Term, First Dept. 1889] 4 N. Y. Supp. 11.) Hagarty, Carswell and Scudder, JJ., concur; Lazansky, P. J., concurs in result; Davis, J., concurs on the first ground only.
