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Gilsey v. Wild

1 Hilt. 305 Court N.Y.C.P. English

Delivered by Brady, J. —

Contents

Majority

p. 305
John Gilsey v. Horatio N. Wild.

Headnote

An agreement to pay the plaintiff a specified sum if he would hire certain premises for a year, to commence on a future day, at a certain rent, and to he occupied for a specified purpose, is not an agreement which cannot be completed within one year, and which must be reduced to writing, under the statute of frauds, to make it obligatory.
Such an agreement is completed on the part of plaintiff when he has hired the premises and assumed the responsibility of paying the rent, pursuant to the request of the defendant.
Appeal from a judgment of the Fourth District Court. The complaint in this action averred, that on the 18th day of March, 1855, the plaintiff, a segar dealer, was occupying the store No. 439 Broadway, at the yearly rent of $1,500; that he was about to leave at the close of the then current year, in consequence of the rent being raised to $1,600; that the defendant being then engaged in manufacturing and selling candies at a store very near to that occupied by plaintiff, and believing that if plaintiff surrendered the premises they would be hired for the purpose of a candy store in competition with that of defendant, agreed with plaintiff that if he would hire the store for another year from May 1st, then approaching, for a segar store, at the rent demanded, he, the defendant, would pay him one hundred dollars.
p. 306
Tbe defendant demurred to tbe complaint, contending tbat it should sbow a memorandum in writing of tbe promise sued upon. Tbe justice overruled tbe demurrer.
Tbe plaintiff then proved a verbal promise, as alleged in tbe complaint. Tbe defendant moved for a nonsuit, wbicb was denied.
Judgment was rendered for tbe plaintiff, from wbicb defendant appealed.
J. M. Ackley, for tbe appellant,
contended tbat tbe agreement was one wbicb, by its terms, was not to be performed within one year from the making thereof, and was therefore void, unless Cjvidenced by a memorandum in writing. 2 R. S., 4th ed., p. *17. Tbe agreement was made on the 18th of March, 1855, and could not be fully and completely performed until the 1st of May, 1856. The consideration for defendant’s promise was, that tbe plaintiff should hire and occupy the store as a segar store for one year, for tbe purpose of keeping it from being occupied by a person in the 'same business as defendant. Unless, therefore, plaintiff bad hired and occuped tbe store during tbe entire year, be could recover nothing. Agreements which could not be completely performed on both sides within a year were within tbe statute* Wilson v. Martin, 1 Denio, 602 ; Broadwell v. Qet-man, 2 ibid. 87; Spencer v. Hoisted, ibid. 606; Lockwood v. Barnes, . 3 Hill, 128 .
H. A. Ohedsey, for tbe respondent.

Tbe defendant promised to pay tbe plaintiff $100, if be would hire tbe part of the premises 439 Broadway for one year from May 1st, 1855, at a rental of $1,600, then occupied by plaintiff. Tbe avowed object of tbe defendant, in. thus inducing tbe plaintiff to take tbe premises again, was to keep a Mr. Kane out of them, whose business was similar to tbe defendant’s, and whose proximity would be injurious. Tbe plaintiff consented, and hired tbe premises. Tbe complaint sets up these facts in detail, and, as they constitute a cause of action, tbf demurrer was

p. 307
properly overruled by tbe justice. The statute of frauds has no applicatiou to them. The plaintiff’s right of action was complete when he-hired the premises, as requested. He had assumed the responsibility of paying the rent, in accordance with the request and upon the inducement of the defendant. The assumption of a supposed liability, which has no foundation in law or in fact, is not a sufficient consideration (Cabot v. Haskins, 3 Pick. 83 ) ; but that the assumption of an actual liability is, cannot be questioned. The acceptance of the contract by the plaintiff, and the execution of it in part, created an obligation on his part to pay the rent; and the thing done is a sufficient and completed consideration. The defendant was to pay $100 if the plaintiff assumed to pay $1,600, and the plaintiff assumed the payment. See Phelps v. Townsend, 8 Pick. 392 . Whether the consideration of the defendant’s promise was adequate or inadequate, makes no difference. The slightest consideration is sufficient to sustain the promise. Oakley v. Booman, 21 Wend. 588 .

Judgment affirmed.

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