23 Misc. 105 | N.Y. App. Term. | 1898
If the judgment appealed from rested only on. the grounds assigned "by the court "below, we should perhaps hesi-' tate to affirm it here, "but the validity of the contract in suit is attacked on the ground that it was an agreement to pay 'the debt of another, and that it was void -under the Statute of ¡Frauds,' because not in writing subscribed by the respondent-. This objection, if well taken, is a fundamental one, and renders any recovery in the action impossible. The point., was raised by the defendant in his answer, among other defenses, during the course of the trial, and was one of-the grounds on which he moved to dismiss the complaint. It is, therefore, properly presented here for our consideration.
’ It is not pretended that the agreement in question fulfilled the requirements of the statute. There was no memorandum of the . alleged promise subscribed by the respondent, so that the appellant is forced into the position of claiming that the promise is not within the -statute because -it was -an original undertaking founded upon a new and independent • consideration, and was not, therefore, an engagement to pay the debt of another within the meaning) of the statute as it has been construed by the courts. There is'a wealth of learning on the subject, the tendency of which in this state certainly has been towards upholding the statute and avoiding refinements of construction tending to narrow its operation. Mallory v. Gillett, 21 N. Y. 412; Brown v. Weber, 38 id. 187; Smart v. Smart, 97 id. 559; Ackley v. Parmenter, 98 id. 425; White v. Rintoul, 108 id. 222.
This case is referred to with approval in the case of White v. Rintoul, supra, in which the whole subject is most ably discussed and reviewed by Judge Finch, giving the opinion of the entire court.
The facts of the case at bar, in so far as they bear on the ques* tion under discussion, are tersely stated by tire plaintiff in his complaint. He alleges a contract between the appellant and one Theresa Erb for making certain alterations and additions to. certain premises in the city of Rew York; that the appellant entered upon
Counsel for .the. appellant refers to the case of Merserau Co. v. Washburn, 6 App. Div. 404. We have examined this case, but find nothing in the law there laid down which conflicts with the cases which we have cited, or which assumes to lay' down any different principles from those which are enunciated in such cases. The court there held, upon the facts of that case, that there was a distinct pecuniary advantage to the promisor bn which, his undertaking was founded, which made the promise an original one. The case was,; therefore, in harmony with the previous declarations of the court "on the subject.
In view of the conclusion to. which we have come, it is unnecessary to consider the other exceptions in the case, as none of them bears upon the matter which we have discussed, and a new trial could not result otherwise than in a dismissal of the complaint on the ground of the invalidity of the contract itself.
Judgment affirmed, with costs.
Gildebsleeve and Gieoebioh, JJ., concur.
Judgment affirmed, with costs.