Sinkovitz v. Applebaum

Leventritt, J. The dismissal of the complaint under a 'plea of the ¡Statute of Frauds was error. The evidence adduced shows that the plaintiff’s claim was founded on an original promise. The plaintiff was a subcontractor under one Musnitsky, who had been employed by the defendant to make certain alterations and repairs to premises owned by him. Owing to the nonreceipt in full of an earned installment, the plaintiff concluded to abandon the'work. Being informed of the situation, the defendant sought the plaintiff and said to him: “ Go ahead with your work and I will pay you as soon as you finish the.job.” Belying on that assurance, the plaintiff resumed and completed the work; and, upon the defendants’ failure to pay, he brought this action to recover the agreed [528] amount. After proving the completion of the work and presenting the evidence of three witnesses that the defendant promised under the circumstances detailed to pay upon such completion, the plaintiff rested his case. Thereupon the defendant moved a dismissal of the complaint on the ground that the “ contract alleged to have been made between the defendant Applebaum and this plaintiff, if made at all, is void under the Statute of Frauds and based upon no consideration whatever.” The granting of that motion furnishes the basis of this appeal and calls for a reversal of the judgment entered thereon. " The learned trial justice concluded that the promise made by the defendant was to answer for the debt of Musnitsky and was void because not reduced to a writing signed by the defendant. That was a mistaken conclusion. The defendant, the promisor, was the owner of the property undergoing repairs; the labor and materials furnished by the plaintiff tended to improve and enhance the value of that" property. The contractor had neglected to pay an agreed installment and the plaintiff was then within his rights in refusing to proceed further with the work. The promise inducing the resumption and completion of the work, made under such circumstances, was original, not collateral; it was founded upon a new consideration — the prompt and uninterrupted prosecution of the work which inured to the benefit of the defendant. That benefit formed the consideration; the debt became that of the defendant; his promise was not to pay Musnitsky’s debt but his own; the contract was new and "independent. As such, though oral, it was valid and enforceable. The rule controlling the disposition of this-case is stated by Finch, J., in White v. Rintoul, 108 N. Y. 222-227, in this language: “ Where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and' beneficial to him and such that the promisor thereby comes under an independent duty of payment irrespective of the liability of the principal debtor.” The relation of the parties to the obligation here sought [529] to be enforced is analogous to that which existed between the litigants in numerous cases which have engaged the attention of the courts, and the uniform conclusion has been that the promise does not fall within the statute and is valid and effectual without a writing. Snell v. Rogers, 70 Hun, 462; Almond v. Hart, 46 App. Div. 431; Mannetti v. Doege, 48 id. 567; Reisler v. Silbermintz, 99 id. 131; Schild v. Eckstein Brewing Co., 108 id. 50; Raabe v. Squier, 148 N. Y. 81. The judgment must be reversed. Gildersleeve and Erlanger, JJ., concur. Judgment reversed and new trial ordered, with costs to the appellant to abide event.