Ryan v. Pistone , 89 Hun 78 ( 1895 )

BROWN, P. J.

The exception taken to the denial of the motion to dismiss the complaint must be sustained. It appears that one Ceburre entered into a contract with the defendant to erect a house. Ceburre sublet the roofing and plumbing to the plaintiffs, and there was a balance unpaid for their work. The plaintiff Eyan testified to a conversation with the defendant, in which defendant orally agreed to pay the plaintiffs’ bill, and deduct it from the amount due to Ceburre. It does not appear that Ceburre consented to this arrangement, or was consulted about it. The testimony was that he was present at the conversation, but said nothing. Thereafter defendant paid plaintiffs $200, and this action was brought to recover the balance. The case presents nothing more than an oral agreement, without consideration, to pay the debt of another. To constitute a novation, there must be a mutual agreement among three or more parties, whereby a debtor, in consideration of being discharged from his liability to his original creditor, contracts a new obligation in favor of a new creditor. Ceburre could not be held to have discharged the defendant from the mere fact that he was present at the conversation between Ryan and the defendant. That fact did not estop him from enforcing his claim against the defendant. If he had sued defendant for the balance due him upon his contract the day following the conversation, defendant could not successfully have pleaded an oral agreement to pay the plaintiffs. Kelly v. Roberts, 40 N. Y. 432. But if the agreement was not binding upon Ce-burre the moment it was made, it did not become so by anything that occurred thereafter. The case does not fall within the doctrine of Lawrence v. Fox, 20 N. Y. 268.

The judgment must be reversed, and a new trial granted, costs to abide the event.