Joseph Beck & Sons v. Tynberg

Headnote

Beck & Sons v. Tynberg, 158 App. Div. 929 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 3, 1913, affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion for judgment upon the pleadings. The complaint is predicated upon the theory that the defendant obligated himself to pay certain promissory

notes made by a third party in consideration of the discontinuance of an action then pending between the plaintiff as plaintiff and said third party as defendant. The answer of the defendant, in addition to denying the allegations of the complaint, set up, as a separate defense, that the promise alleged in the complaint was one to answer for the debt, default or miscarriage of another, and was not, nor was any memorandum thereof, made in writing or subscribed by the party to be charged therewith, this defendant, or his lawful agent. To such defense of the Statute of Frauds the plaintiff, in its reply thereto, alleged that the promise was an original promise based on a valid consideration and not within the statute.