Gould v. Moring

By the Court, Davies, P. J. The case of Hanford, v. Rogers, (11 Barb. 18,) decided in 1851, in the general term of this district, is certainly an authority for maintaining the ruling at the circuit. In that case the guaranty of a hond expressing no consideration was held not to he within the statute of frauds. It was executed at the time of the hond, and was held tq be a part of the same transaction. It was as in this case, one transaction, executed at one time, and for one consideration, and the court say that “ none of the dangers against which the statute of frauds was designed to guard could arise here.” But the case of Brewster v. Silence, (4 Seld. 207,) since decided by the court of appeals, is in conflict with that decision, and Hanford v. Rogers must yield to the higher authority. In Brewster v. Silence the note and guaranty were given at the same time, on the same piece of paper, and on the faith of both, property was parted with by the receiver. The court of appeals say “ the note and guaranty are not one and the same thing. The note is the debt of the maker—the guaranty is the engagement of the defendant, that the maker shall pay the note when it becomes due. A joint action will not lie against them both. They are not the same but different and distinct contracts. If we give effect to the statute, we must treat the guaranty as void for want of expressing on its face the consideration.” In this case the defendant undertakes, as security for the tenant; that is, that he will pay if the defendant does not. A joint action will not lie against them both; they are not the same, but different and distinct contracts. (De Ridder v. Schermerhorn, 10 Barb. 638. Allen v. Fosgate, 11 How. Br. R. 218.) It follows therefore, that the present case falls directly within the rule laid down in Brewster v. Silence, and, [447] the consideration not being expressed in the undertaking of the defendant, it is void by the statute of frauds, as the same exists in this state. The judgment appealed from is reversed, and a new trial ordered; costs to abide the event. [New York General Term, November 4, 1858. Davies, Clerke and Ingreham, Justices.]