Dux v. Spielberg ( 1913 )

SEABURY, J.

This action was brought to recover for money paid the Graff & Graff Hotel Restaurant Company. The plaintiff testified that he had paid the money to the Graff & Graff Hotel Restaurant Company upon the promise of the defendant to repay it to him. The learned court below dismissed the complaint on the ground that the cause of action alleged was within the statute of frauds. We think that this was error. The question should have been submitted to the jury as to whether the alleged promise of the defendant was an original promise that he would repay the money advanced, or whether it was collateral merely to the obligation of the Graff & Graff Hotel Restaurant Company. According to the contention of the plaintiff, there was no obligation bn the part of the Graff & Graff Hotel Restaurant Company to pay the money advanced, and the money was advanced solely upon the promise of the defendant to repay it. In other words, the defendant did not obligate himself to repay in the event of the default of the Graff & Graff Hotel Restaurant Company, but promised absolutely to repay the money advanced.

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