If the fact found by the referee in his second finding of facts is sustained by the evidence, there can be no question in regard to the defendant's liability to pay the plaintiff for all his labor during the entire “fire." According to this, the defendant purchased the property, with all the advantages and avail's of the plaintiff's labor, before the term of his labor had half expired, and agreed with the vendor, in consideration, to pay the plaintiff for that portion of his work which he had already performed, the plaintiff to continue and complete the term of his labor. This is not a case affected by the statute of frauds. It is the promise of one deriving a benefit by means of the undertaking, and having funds placed in .his hands for the payment of the indebtedness, which he promises, in consideration thereof, to discharge. (Lawrence v. Fox, 20 N. Y. Rep. 268. Mallory v. Gillett, 21 id. 412. Burr v. Beers, 24 id. 178.)
It can not be said that this finding is destitute of evidence to sustain it. Indeed it appears to me that the preponderance of the evidence is decidedly in favor of the finding. The other questions were all, I think, properly decided by the referee.
The judgment must therefore be affirmed.
Johnson, E. Darwin Smith and James C. Smith, Justices.]