150 N.Y.S. 843 | N.Y. App. Div. | 1914
The complaint sets forth two causes of action, and the defendant pleads two separate defenses to each of them all based on the Statute of Frauds.
We concur in the views well expressed in the opinion of the learned justice at Special Term; but we deem it advisable to state the case more fully and to cite some authorities not cited in the opinion or by counsel which we deem more in point than those cited.
The plaintiff alleges that on the 10th of February, 1909, the New York Mail Company entered into an agreement with the United States whereby it undertook to transfer the mails in the borough of Manhattan, New York, for a period commencing that year and terminating on the 30th of June, 1913, and for a period thereafter in the discretion of the Postmaster-General until a new contract should be made, but not exceeding six months; that the mail company was required to and did furnish a bond with the American Surety Company as surety in the sum of $500,000 for the faithful performance of its contract, and the defendant entered into an agreement with the' surety company, as an inducement to it to become surety, to indemnify it and save it harmless, and that said bond and indemnity agreement are still in full force and effect; that said mail company carried the mails pursuant to said agreement until the 31st day of August, 1913, at which time the government made a new contract with another party; that the mail company, to enable it to perform its agreement for carrying the mails, was obliged to purchase specially constructed
The second cause of action is to recover the sum of $2,634.48, the agreed price and value of certain “parts and accessories for said motor trucks ” and necessary repairs, which the plaintiff on the 10th day of July, 1913, agreed to deliver and to make in consideration of defendant’s promise then made to pay it therefor, and which plaintiff did deliver and make pursuant to said agreement.
It is quite clear under the decisions that the defendant’s agreement made in advance and based on a good and sufficient consideration flowing to him personally, to pay for the material to be delivered and repairs to be made, on which the second cause of action is based, was not within the Statute of Frauds. (Raabe v. Squier, 148 N. Y. 81; Schwoerer & Sons, Inc., v. Stone, 130 App. Div. 796; affd., 200 N. Y. 560.) In Raabe v. Squier (supra) it was held that an agreement, hy a party interested in having another perform a contract, to guarantee payment, and to pay if the party to whom materials were to be furnished and delivered “would not,” was not within the statute. The facts showing the defendant’s interest in the performance of the mail company’s contract are realleged in the second count. It is, therefore, quite clear that the second cause of action as alleged is not within the Statute of Frauds, and there being no denials of the allegations of the complaint in the defenses thereto or attempt to plead a different contract, the mere allegation that the contract was within the Statute of Frauds is of no avail for the only contract is the one pleaded and thus admitted. (See Brookline Nat. Bank v. Moers, 19 App. Div. 155.) No question is now presented with respect to the extent of the plaintiff’s right to recover or with respect to whether the contract alleged in the first count was sufficiently definite to be valid and enforcible in its entirety
It follows, therefore, that the interlocutory judgment is right and should be affirmed, with costs, but with leave to defendant to amend on payment of the costs of the appeal and of the demurrer.
McLaughlin, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.
Judgment affirmed, with costs, with leave to defendant to amend on payment of costs in this court and in the court below.