Flagler v. Lipman

The plaintiff made a contract with one Bell in October, 1889, to cement sidewalks, cellars, areas, yards, etc., in and about certain houses owned by Bell at Eighty-fourth street and Tenth avenue, which work was completed about June 1,1890.

Said premises were conveyed to one Schmitt, April, 1890.

Schmitt reserved enough money out of the purchase price to pay plaintiff when his work was completed.

During the ownership of Schmitt part of the work, of the value of $873, under said contract was done, and plaintiff had a right to file a lien against the premises for the value of his work done and materials furnished.

The work was completed by plaintiff at Schmitt’s request.

In July the. defendant requested the plaintiff to release Schmitt from the payment of said debt, and also to release said premises from the lien which he had against the same for such work, and verbally promised plaintiff that he would pay said claim, if such release was given.

On July 10th such a release was executed and delivered to Schmitt, the defendant made two payments under his said promise, amounting to $423, leaving a balance due of $450.

The payment of said $873 was tobe made in instalments; $223 was paid when release was signed, and the balance was to be paid when certain work was completed by Bell upon the houses then being built.

The defendant submitted his version of the transaction with plaintiff, which differed with plaintiff’s statement thereof, but the jury elected to believe the plaintiff, and disbelieve the defendant, which they had a right to do, and plaintiff’s version is substantially as above related, and we must draw from the evidence every possible inference favorable to plaintiff’s case.

The defendant’s contention upon this appeal is that his promise being merely verbal is void, the statute of frauds requiring such promises to be in writing and signed by the person sought to be charged.

It is quite true that the statute of frauds requires an agreement or promise to pay the debt of another to be in writing, and signed by the person sought to be charged therewith, but the promise of defendant was not of that character. He promised to pay Schmitt’s debt, if plaintiff would release Schmitt and rely solely' and only upon him for the payment therefor.

Under such a promise, he becomes the original obligor, and, therefore, it was not within the statute mentioned, and his promise need not be in writing.

The court of appeals, in Brown v. Weber, 38 N. Y., 187 , says: “ The test to be applied to every case is whether the party sought to be charged is the principal debtor primarily liable, or whether he is only liable in case of the default of a third person. In other words, whether he is the debtor or whether his relation to the creditor is that of surety for the performance by some other person of the obligation of the latter to the creditor.’’ Again, in Ackley v. Parmenter, 98 N. Y., 425 , Rapallo, J., states the rule to be, the verbal undertaking is within the statute unless the defendant before making the promise had so dealt as to make the debt his own or had incurred a duty to pay the amount due to plaintiff.

These two cases, I think, state the doctrines of law applicable to this case. Here the defendant, by inducing the plaintiff to release his claim against Schmitt and his (Schmitt’s) property and promising to pay the debt due, became the principal debtor, he thus made the debt his own, and incurred a duty to pay the amount due plaintiff by Schmitt.

The fact that Bell did not finish his work in the Eighty-eighth street house does not affect the right of plaintiff to recover in this action.

Judgment affirmed, with costs.

Newburger, J., concurs.