Buckley v. Zimmerman ( 1900 )

Per Curiam.

The complaint is for the use of a steam hod elevator. There is no evidence that shows or tends to show that the defendant Albert Saxe ever hired a hod elevator from plaintiff. It is true that one o-f the plaintiff’s witnesses testified that the defendant Saxe promised that he would keep from Zimmerman (the person to whom plaintiff had rented the hod elevator) out of his contract, and out of his extras, sufficient to pay plaintiff’s bill, but the original'indebtedness was Zimmerman’s, and even if the action had been brought on the theory that the defendant Saxe had promised to pay the debt of another, there being no consideration for such promise, plaintiff cannot recover. It was not necessary for defendant to plead the Statute of Frauds, because the complaint against him was not on his promise to pay the debt of another.

Judgment is reversed and a new trial ordered in the Municipal Court for the tenth district, with costs to the defendant Saxe, to abide the event.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment reversed and new trial ordered, with costs to defendant Saxe to abide event.