108 N.Y.S. 1018 | N.Y. App. Div. | 1908
This is an appeal from a judgment of the Municipal Conit in an action brought against the defendants to recover the purchase price of a quantity of lumber sold to the Shea-Ellis Construction Company to be used in the erection of a building at ¡Dreamland for the Creation Company, a copartnership of which the defendants were president and vice-president respectively. It was claimed by plaintiff that defendants promised to pay for the' lumber at the time the same was purchased by the contractor. An issue of fact was presented upon the trial as to whether defendants made such a promise; the learned justice has decided in favor of defendants and there is sufficient evidence in the case to sustain his finding. We are not clear, however, that he decided the case upon the facts. He evidently believed that the agreement claimed by plaintiff to have been made was an agreement to answer for the debt, default or miscarriage of the Shea-Ellis Construction Company, and, therefore, within the Statute of Frauds.
Woodward, Jenks, Hooker and Gaynor, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.
See Pers. Prop. Law (Laws of 1897, chap. 417), § 21, subd. 2.— [Rep. '