Inman v. Johnston — 56 N.Y. St. Rep. 619

Majority

p. 619

George B. Inman et al., Resp’ts, v. Walter S. Johnston, App’lt.

(New York City Court, General Term,

Filed November 27, 1893.)

Headnote

Contract—Statute of frauds.

An oral promise by a party to pay for work done at his direction, though necessary to save the franchises of a corporation, is not within the statute of frauds.

Appeal by defendant from judgment on verdict returned against him and from order denying new trial.

Lamb & Petty, for pl’ffs-resp’ts; Bangs, Stetson T & McY.for def’t-app’lt.

Plaintiffs’ alleged cause is for work performed and materials furnished at the request of defendant in and about making certain water line extension. One of the plaintiffs testified that, at defendant’s request, he went to Iowa to ascertain what extensions were required, and upon his return reported to defendant that the extension “ which led up to the city jail ” was required to be made, and that thereupon defendant replied, “ All right, go ahead and make it and I will pay for it; ” and that plaintiff made this extension, and that the same was reasonably worth the sum sued for.

Defendants’ contention on appeal is that because the water line extensions were rendered necessary to save certain franchise rights of a water company corporation, hence, that this promise of defendants’ is a promise to answer for the debt, default or miscarriage of the water company; and not being in writing and signed by him, is void under the statute of frauds. The evidence clearly shows that plaintiffs’ promise was an original promise to pay defendant for the work performed for plaintiff at his request, and not a collateral promise to answer for the debt, default or miscarriage of another.

The verdict for plaintiff is sustained by the evidence, and the judgment and order appealed from are affirmed, with costs.

Hewburger, J., concurs.