Jessup v. McGarry — 28 N.Y. St. Rep. 85

Majority

p. 85

Charles L. Jessup, Resp’t, v. John McGarry, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

Statute of frauds—Promise to pay debt of another.

In an action for goods sold, plaintiffs testified that defendant agreed to pay if plaintiff would deliver the goods to a third person. This was denied by defendant and such person, and it was shown that plaintiff had made our bills to such person and endeavored to get defendant to sign_ as surety or guarantor of the debt. Held, that the question as to the making of the agreement was one of fact for the jury, and their verdict in favor of plaintiff would not be disturbed.

Appeal from judgment entered on verdict of a jury and from order denying motion for a new trial.

p. 86

Action for milk sold and delivered. Defense, that the milk was not sold and delivered to defendant but to one Yon Winkle.

If. T. Marston, for app’lt; Alton J. Vail, for resp’t.

This ease involves only questions of fact as the case was clearly and fairly submitted to the jury by the judge’s charge and no exception taken thereto. At folios 20 and 28 of the case it appears that plaintiff testified to a conversation with defendant wherein defendant agreed if plaintiff would serve his milk to Yon Winkle, he, McGarry, would send plaintiff a check for the amount.

If this was the agreement, and the jury must have so found, then McG-arry was the original debtor and liable in this action. This view is corroborated by Mr. Woodruff at folio 50 of the case.

The conversation as detailed by these persons is denied by defendant and Mr. Yon Winkle, and their testimony is somewhat corroborated by the fact that bills were made out to Mr. Yon Winkle, and an effort was made by plaintiff to have defendant sign an agreement as surety or guarantor for the payment of the debt, but after all it was a question of fact to be determined by the jury, and the verdict is not so manifestly against the weight of evidence as to require it should be set aside.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J, not sitting.