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Knox v. Nutt

1 Daly (N.Y.) 213 Court N.Y.C.P. English

Delivered by Brady, J.

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p. 213
Charles Knox v. Furman T. Nutt.

Headnote

The defendant, the clerk of the plaintiff, who was a hatter, told the latter that if any of his personal friends bought hats on credit, he would pay for them if they did not. The defendant sold hats to his friends which were charged to them on plaintiff’s books.—Held, that the promise of the defendant was collateral, and within the statute of frauds, and therefore void.
Appeal by the plaintiff from a judgment of dismissal granted by the First District Court, on the ground that the promise on which the action was brought was within the statute of frauds.
The facts sufficiently appear from the opinion of the Court.
George W. Stevens, for appellant.
E. W. Dodge, for respondent.

By the Court.

The plaintiff is a hatter, and employed the defendant as clerk. The defendant told the plaintiff that if any of his personal friends bought hats on credit he would be responsible—that he would pay if they did not. The defendant sold hats to his friends, which were charged to them, and they were never discharged from their obligations. The Justice held the engagement or promise of the defendant collateral, and within the statute of frauds. The decision was correct. The persons to whom it is alleged the defendant sold hats were primarily liable to the 'defendant. He charged the hats to them. The whole credit was not given to the defendant. The whole responsibility did not rest upon him, and the promise was therefore collateral and void. Leonard v. Vredenbergh, 8 J. R. 23, and Cases collected in a noce to that case; Brown v. Bradshaw, 1 Duer,. 199 ; Car-

p. 214
ville v. Crano, 5 Hill 483 ; Newcomb v. Clark, 1 Denio 226 ; Brady v. Sackuder, Sandf. 514; Pennel v. Pentz, 6 E. D. Smith 639; Dixon v. Frazel, 1 E. D. Smith 32 ; Brewster v. Silence, 4 Selden 207.

In Newcomb v. Clark, supra, the defendant signed a paper in these words : “ Mr. Henry Peters—I hereby agree to pay to you the rent of the part of the house hired of you by Hr. John "Ward, in case he fails.” The promise was held void, though in writing, the consideration not being expressed. The case in hand cannot he distinguished in principle from that case.

The judgment should be affirmed.

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