Morgan v. Woodruff , 1 N.Y. City Ct. Rep. 14 ( 1882 )

McAdam, J.

The contract entered into by the defendant was not a collateral undertaking to pay the debt of another. There was no debt in existence until the promise was made. The promise gave rise to the debt, and it became an original undertaking on the part of the defendant to pay $1,000 if the plaintiff would perform a certain service. The service was performed. The action to which it related was terminated and the defendant’s liability as surety on his friend’s bond was discharged. I think this was a legal contract, and in no way affected by the Statute of Frauds.

The defendant contends that the contract is opposed to public policy, because the plaintiff was the attorney of the plaintiff in the action to which the promise related, and that he could not enter into any adverse employment. The proposition is correct in principle (Herrick v. Catley, 1 Daly, 512; Gaulden v. State of Georgia, 11 Ga. 47), but has no application to this, case, because the employment of the plaintiff was not'adverse to his client, for it had his approval. This circumstance relieves the case from the objection stated. (By analogy see Rowe v. Stevens, 53 N. Y. 621 Siegel v. Gould, 7 Lansing, 177; 38 N. Y. 212.) The jury have settled the facts, and as no error of law was committed the motion for a new trial must be denied,, but without costs.

Affirmed by the marine court general term, and by the common pleas general term.