Floyd v. Wise — 42 N.Y. St. Rep. 121

Majority

p. 121

James R. Floyd et al., App’lts, v. Nathan Wise, Resp’t.

(City Court of New York,

General Term,

Filed December 17, 1891.)

Headnote

Statute op frauds—Promise to pay for services rendered to another.

In an action for services rendered and materials furnished to a third person, the weight of evidence showed that plaintiff intended to give credit solely to defendant and hold him primarily liable for the debt, and it appeared that defendant personally made a payment thereon and took a receipt drawn in his own name. Held, that defendant was liable as an original debtor, and that it was error to dismiss on the ground that the case was within the statute of frauds.

Appeal from judgment dismissing the complaint.

Edward M. Bliven, for app’lts ; Samuel W. Weiss, for resp’t.

This is an action for services rendered and materials furnished, all of the value of $145.41. Twenty dollars was paid on account thereof. The answer is a general denial. The complaint was dismissed at close of plaintiff’s case by the trial justice, on motion of defendant’s attorney, upon the ground that the testimony established the fact that defendant promised to pay the debt of another, and such promise, not being in writing, was void under the statute of frauds,

If the testimony proved that the defendant was liable collaterally and not as an original debtor upon the cause of action in the complaint, then the trial justice was right in dismissing. But such is not the case here. I have carefully read all of plaintiff’s testimony, and am of the opinion that it proves that the defendant is primarily liable for the debt sued on to the plaintiff. It is true that a few times plaintiff’s witnesses said that defendant promised to “ see the bill paid,” but the weight of the testimony shows plaintiff intended to give credit to the defendant solely, and to hold him primarily liable for the debt. This theory is supported by the fact that the defendant personally paid to plaintiffs on account of the work to be done the sum of twenty dollars, and received a receipt therefor drawn to his own name.

In view of this state of facts, I think that the trial justice should have required the defendant to submit his version of the transaction to the jury under proper instructions, and let them decide whether the promise made by him was an original or collateral one.

Judgment must be reversed, a new trial ordered, with costs to appellant to abide event of action.

Van Wyck and McCarthy, JJ., concur.