Hess v. Rothschild — 69 N.Y.S. 957

Majority

p. 957

HESS v. ROTHSCHILD.

(Supreme Court, Appellate Term.

April 16, 1901.)

Headnote

Statute of Frauds—Answering for Another’s Debt—Original Promise.

An agreement by an agent to pay the premium on a policy if it should not be canceled is not answering for the debt of another, where he thereby sought to secure his own commissions on the contract.

Appeal from municipal court, borough of Manhattan, Tenth district.

Action by Ludwig Hess against Louis Rothschild. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

Argued before BISCHOFF, P. J., and CLARKE and LEVEN-TRITT, JJ.

Strahl & Dreyer, for appellant.

Theodore Prince, for respondent.

This judgment should be reduced by 25 per cent., being the admitted amount of the commissions to which the defendant was entitled. While the insured was primarily liable for the premium, yet the agent made himself so on his express promise to pay if the policy should not be canceled. This was not answering for the debt, default, or miscarriage of another, but was an original obligation to the advantage of the agent as he thereby sought to secure his own commissions on the contract. His denial of the agreement that he promised to pay the premium in the event that the insured did not cannot be considered in this court, as the justice below must be deemed to have found that he in fact did make the promise. The judgment should be reversed, and a new trial ordered, unless the respondent consents to a reduction of the judgment by the sum of $4.87.

So ordered.