First National Bank v. Chalmers — 33 N.Y. St. Rep. 526

Majority

p. 526

The First National Bank of Sing Sing, App’lt, v. Thomas A. Chalmers et al., Resp’ts.^[1]

(Court of Appeals, Second Division,

Filed October 14, 1890.)

Headnote

Statute of frauds—Promise to pat the debt of another.

Upon the case as heretofore presented to this court, the promise, which, evidence tended to prove was made by the defendant to Spruce and Leary upon the confession of the judgment, was alone insufficient to warrant a recovery by the plaintiff; but the promise to pay the plaintiff’s claim, which there was also evidence tending to prove was made by the defendants to the plaintiff upon the adoption by the latter of what had taken place between the defendant and Spruce and Leary, was essential to support the action; and the error was in not submitting the case to the jury in view of the evidence presenting these questions of fact.

Motion for reargument

Calvin Frost, for motion; Francis Larkin, opposed.

The suggestion in the motion papers that it does not clearly appear on what ground there was concurrence in-granting a new trial, renders it unnecessary to do more than to-refer to the opinions handed down on the determination of the-appeal, and to add that it is the opinion of a majority of the court that upon the case as presented by the record the promise, which evidence tended to prove was made by the defendants to Spruce and Leary, upon the confession of the judgment, was alone insufficient to warrant a recovery by the plaintiff; but that the promise to pay the plaintiff’s claim, which there was also evidence tending to prove was made by the defendants to the plaintiff upon the-adoption by the latter of what had taken place between the defendants and Spruce and Leary, was essential to support the, action; and that the error was in not submitting the case to the jury in view of the evidence presenting these questions of fact

The motion should be denied.

All concur.