Eno v. Gidoney , 154 N.Y.S. 104 ( 1915 )

BIJUR, J.

Plaintiff sued to recover from defendant the amount of indebtedness due plaintiff from a third person for legal services. Plaintiff testified in substance that defendant called upon him with this third person, and said:

“ ‘Well, you know me. I don’t want you to sue him. You can look to me for the payment. I will pay that sum of money; but that payment will be made in two payments, one in May and one in June.’ I said to him: ‘If you promise to pay me that, I will have no further business with Levine; it is agreeable to me. I am willing to give you the time to pay it, but you must pay me.’ And I said: T won’t sue Levine under those circumstances, but will look to you for payment.’ And then he said to me, as Mr. Levine was going out, he said: T want you to insist upon getting paid by him, but you can look to me for the payment of that money.’ And I said: ‘All right’ ”

It seems to me to be perfectly evident that the promise of defendant, as thus testified to, was purely collateral, and not original, and therefore, in order to be enforceable, should, under the statute of frauds, have been in writing. The question is not whether there was a consideration for defendant’s promise, because, concededly, plaintiff’s agreement not to sue the third party would have constituted such consideration. The point is, first, that the original debt was not extinguished, because the third person still remains liable; and, second, that it is not shown that defendant’s promise is “founded on a new consideration moving to the promisor, and beneficial to him.” See White v. Rintoul, 108 N. Y. 222, at 227, 15 N. E. 318, reviewing Ackley v. Parmenter, 98 N. Y. 425, 50 Am. Rep. 693; also Raabe v. Squier, 148 N. Y. 87, 42 N. E. 516; Brumm v. Gilbert, 50 App. Div. 430, 64 N. Y. Supp. 144; also Mechanics’ & Traders’ Bank v. Stettheimer, 116 App. Div. 198, 101 N. Y. Supp. 513.

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