Milk v. Rich , 22 N.Y. Sup. Ct. 178 ( 1878 )

Smith, J.:

The evidence warranted the conclusion that the defendant sold the Marsh note as his own property, for a valuable consideration received from the plaintiff, and the jury are presumed to have so found. They are also presumed to have found, upon sufficient evidence, that, at the time of selling the note to the plaintiff, the defendant promised and warranted that it was good, and that it would be paid at maturity. In fact, it was not good and was not paid. The only question presented by the facts found, is whether the guaranty of the defendant, not being in writing, is void by the Statute of Frauds, as a promise to answer for the debt or default of another. In form, it was a promise that the makers of the note would perform their obligation, but, in reality, it was an undertaking by the defendant, for his own benefit, upon a full consideration received by himself. He contracted on his own account, and. not as a surety for the makers of the note. It has been decided frequently, that such a promise is not within the statute. (Johnson v. Gilbert, 4 Hill, 178; Cardell v. McNiel, 21 N. Y., 336; Bruce v. Burr, 67 id., 237.)

The judgment and order should be affirmed.

Mullin, P. J., and Talcott, J., concurred.

Judgment and order affirmed.