43 Misc. 637 | N.Y. App. Term. | 1904
The defendant’s son had become a defaulter in the course of his employment by the plaintiff. Upon being notified of the fact, the defendant entered into a certain agreement with the plaintiff. The' said agreement, as it must be deemed to have been established by the jury, was that in consideration that the plaintiff should not disclose to the defendant’s husband the fact of her son’s dishonor, and in consideration that the plaintiff should retain said son in its employ, and in further consideration that the plaintiff would release said son from, all claims against him by reason of the defalcation, the defendant would pay the amount of the defalcation. The plaintiff performed its part of the contract. The defendant, after making some payments on account, refused to pay any more. The jury found for the plaintiff for the balance remaining due. The court below set aside the verdict for the following reasons, viz.: “ In order to hold defendant upon her promise to pay the debt of her son, there must be a consideration moving to and beneficial to her (Ackley v. Parmenter, 98 N. Y. 425; White v. Rintoul, 108 id. 231), and the evidence in this case fails to supply that requirement of the law.”
There was error in thus applying the provisions of the Statute of Frauds to the case as determined by the jury, and the authorities cited are not decisive. In neither of these two cases cited was there a request on the part of the promisor to release the original claim, followed up by' an actual release and extinguishment thereof. In both of them the defendant stood in the relationship of surety for the performance by the original debtor of the obligation of the latter to the creditor. They would be applicable if the fact were established that defendant’s obligation was one of surety and contingent upon something which the original debtor was to do. But that element does not exist here. On the contrary the case at bar comes directly within the
The order appealed from must be reversed, with costs and disbursements.
Truax and Scott, JJ., concur.
Order reversed, with costs and disbursements.