Kleinman v. Auerbach

Bijur, J. Plaintiff sues for work done in constructing a building. He alleges that defendant and an associate were mortgagees under both a first mortgage and a “second mortgage or building loan; furthermore, “ that defendant * * * was interested in the performance and progress of the work * * * as said work tended to and did enhance the value of said premises,” etc. [437] Plaintiff, having made an agreement with the owner to do. the construction work, declined to go on, when certain payments became- in arrears. Thereupon defendant promised that, if plaintiff would resume the work and complete it and abstain from filing a mechanic’s lien, he would pay. plaintiff the money due; at the same time saying that he had enough money on hand out of the new building loan to pay the amount which he promised. Plaintiff, relying on this promise, resumed the work, finished it and abstained from filing a mechanic’s lien. The defense demurred to is that defendant’s promise was one to answer for the debt, default or miscarriage of another, was not in writing, and was, therefore, void under the Statute of Frauds. I think that the decision in Mechanics and Traders’ Bank v. Stettheimer, 116 App. Div. 198, is decisive of this case. The promise in the case at bar is an original promise as described in the third category laid down by Mr. Justice Ingraham in the Mechanics’ Bank case at page 202: “Where, although the debt remains, the promise is founded on a new consideration which moves to the promisorDefendant’s interest in the premises, as set forth, is sufficient warrant for holding that a benefit moved to him by the completion of the work. See Davis v. Patrick, 141 U. S. 479. This point is emphasized by the distinction drawn in Mallory v. Gillett, 21 N. Y. 412, where the promisor had no such interest. See also Bruce v. Burr, 67 N. Y. 240; Cardall v. McNiel, 21 id. 336; Milks v. Rich, 80 id. 269; Brookline National Bank v. Moers, 19 App. Div. 155; Raabe v. Squier, 148 N. Y. 81; Almond v. Hart, 46 App. Div. 431; Schild v. Monroe Eckstein Brewing Co., 108 id. 50; Breen v. Isaacs, 49 Misc. Rep. 127. Respondent makes a claim that the complaint is not good because it is not alleged that the defendant promised the plaintiff to pay him. I think, however, that [438] the allegations of the complaint sufficiently show an agreement made between plaintiff and defendant and plaintiff’s performance thereof. Judgment reversed, with ten dollars costs and disbursements, and demurrer of plaintiff sustained, with ten dollars costs, with leave to defendant to serve an amended answer within six days after service of a copy of the order entered herewith with notice of entry of the same in the City Court upon payment of costs in this court and in the court below. Seabury and Guy, JJ., concur. Judgment reversed, with ten dollars costs and disbursements, demurrer sustained, with ten dollars costs, with leave to serve an amended answer within six days upon payment of costs.