84 N.Y.S. 532 | N.Y. App. Div. | 1903
I see no reason to disturb the decision upon the facts, and I think that the defense of the statute of frauds cannot prevail. Plaintiff’s assignor, Stromberg, recovered a judgment against Faisler for conversion of jewelry sold on the installment plan, and jailed him. Faisler was a servant of the defendant. The evidence warrants these findings of fact: The defendant promised Stromberg that, if he would release Faisler for a return to service, he (the defendant) would pay the claim. Stromberg did so, and paid the judgment against Faisler. The defendant thereupon paid Stromberg $20 on account, and agreed to pay off the balance in regular installments. At that time, with the assent of Stromberg, Faisler, who had pawned the jewelry, gave the pawn tickets to the defendant, so that he might redeem the jewelry for his own use. Defendant’s parol promise to pay Faisler’s antecedent debt upon consideration of the cancellation thereof wps not within the statute, and is valid. Meriden Britannia Co. v. Zingsen, 48 N. Y. 247, 8 Am. Rep. 549. Again, the promise could be held original, as arising out11 of the consideration of the release of Faisler from jail in order that he might return to the service of the defendant. Barney v. Forbes, 44 Hun, 446, affirmed in 118 N. Y. 580, 23 N. E. 890. Either Stromberg or Faisler owned the jewels, which were but the subject of bailment to the pawnbroker. If Stromberg owned them, then his assent to the transfer of the same tp the defendant upon the promise of the defendant to discharge Stromberg’s claim, based upon his conditional sale to Faisler, is sufficient to make the promise original. Even if Faisler owned the jewels, then his transfer to the defendant of his property rights upon defendant’s promise to pay Faisler's debt to Stromberg made the promise original. F. N. Bank v. Chalmers, 144 N. Y. 432, 39 N. E. 331.
The judgment and order should be affirmed, with costs. All concur.
