Realty Records Co. v. Slutzkin ( 1911 )

COHALAN, J.

The facts in this case are undisputed. The plaintiff herein obtained a judgment against one Eriedman. An order for defendant’s examination in supplementary proceedings was issued and served. The defendant appeared for examination on September 21, 1910. After being sworn, negotiations for a settlement of the matter were entered into, which negotiations culminated in the making of the following written agreement:

“(1) The examination is adjourned until the 21st day of October, 1910, at 9:30 o’clock in the forenoon, at the office of Joseph Day Lee, at 55 Liberty street, New York City.

“(2) On. or before that time debtor agrees to produce some one of financial responsibility, satisfactory to plaintiff’s attorney, who will guarantee defendant’s promise to pay the plaintiff’s attorney the sum of $10 each month, beginning with January 1, 1911, until the judgment herein is fully paid.

“(3)' Defendant promises to pay plaintiff’s attorney the sum of $10 on the 1st day of each month, beginning January 1, 1911, until the judgment herein is fully paid. Samuel S. Friedman, Judgment Debtor.

“Joseph Day Lee, Plaintiff’s Attorney.

“In consideration of plaintiff’s attorney adjourning hearing as above and extending defendant’s time to pay, I guarantee the performance of said promise made by him simultaneously herewith. If he produces another guárantelas agreed in (2), I am to be relieved from' the promise.

“Maxwell R. Slutzkin.”

The present action was brought in April, 1911, against this defendant, upon the above instrument. Upon the trial, the making of the written agreement was admitted, and it was proven that the debtor did not produce any other person to guarantee the payment of the claim, nor had he paid it himself, or any part thereof, although payment had been demanded of him. No proof whatever was offered by the defendant. The trial justice gave judgment in favor of the defendant, from which judgment this appeal is taken.

The contract in question is clearly binding upon this defendant. It has always been held that an agreement to forbear proceedings at law for the enforcement of a valid claim is a good consideration for a promise. This principle is so well known and of such long standing as to need no citation of authority to support it. The debtor asked for an adjournment of his examination and an extension of time in which to pay. This extension was given him, and for that the defendant gave his promise of guaranty, and, in the event of the failure of the debtor to perform, the defendant became liable under such guaranty. The judgment must be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.