81 N.Y.S. 803 | N.Y. App. Div. | 1903
In the year 1899 the defendant contracted with the firm of Ducker & Co.- to erect a dwelling for him. The copartnership of which the plaintiff is the surviving member sold to Ducker & Co. a large amount of lumber, which entered into the construction of the house, and in October of that year the firm was indebted to the plaintiff in a large sum on that account. The plaintiff alleged and proved that at that time he had a talk with one Thomas, who he claimed was an authorized agent of the defendant, in which he stated that the contractors were not responsible; that he would remove from the premises such lumber as had not been used, and file a lien for the balance; that Thomas asked him to wait, and the next day told him that he had seen the defendant, and that the defendant wished him not to put a lien on the house, and promised to pay plaintiff’s bill, and be responsible for all additional lumber; that in answer the plaintiff said, “All right, I will continue to deliver lumber there;” that the contractors never paid the balance due the plaintiff; and that a lien, if filed at the time this conversation took place, would have been valuable, but that when defendant declined to pay plaintiff’s claim it would have been futile to proceed by lien. The case was submitted to the jury, and they found a verdict for the plaintiff for the full amount of his demand, upon which judgment was later entered in plaintiff’s favor. Thereafter defendant moved to set aside the judgment because it was against the weight of evidence and contrary to law, and the County Court granted the motion, with $10 costs, the order reciting that “it is granted because the said verdict is against the evidence and contrary to law.”
In deciding the motion, the learned county judge filed an .opinion in which he reaches the conclusion, inter alla, that the agreement between the parties, through Thomas, the agent, was void on account of the statute of frauds, not being in writing, and that the promise to pay the plaintiff for the antecedent debt is not original; because not founded on a new consideration moving to the promisor and beneficial to him. The opinion cites several cases which undoubtedly correctly state the law as applicable to the facts therein, but the attention of the court seems not to have been called to Mannetti v. Doege, 48 App. Div. 567, 62 N. Y. Supp. 918, and Alley v. Turck, 8 App. Div. 50, 40 N. Y. Supp. 433. These two cases are controlling upon the proposition of law presented, arid are authority to sustain the appellant’s view. The order, in so far as it- granted defendant a new trial as contrary to law, was, therefore, we think, wrong.
The order is based, however, as well upon the ground that the verdict is against the evidence. Upon a former appeal in this case from a judgment in favor of the defendant, entered upon the dismissal of the complaint (Cox v. Halloran, 64 App. Div. 550, 72 N. Y. Supp. 302), it was held by this court that -there was sufficient
Order setting aside verdict and directing new trial reversed, ánd judgment directed on verdict, with costs. All concur.
. See Frauds, Statute of, vol. 23, Cent. Dig. § 56.