Belknap v. Bender

E. Darwin Smith, J. The defendant’s motion for a nonsuit should, I think, have been granted. The evidence presents, on the [613] most favorable view of it for the plaintiff, a bald case of a promise by the defendant to pay the debt of Ward & Van Vieker to the plaintiff, and is clearly within the statute of frauds. The statute is very explicit. It declares that “ every special promise to answer for the debt, default or miscarriage of another person ” “ shall be void unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith.” Such was this promise. It was not in writing. It was a special promise to pay the debt of Ward & Van Vieker. It was of no consequence, if there was a good consideration for it at common law. It was, nevertheless, void because it was not in writing. But the continuance by the plaintiff of the work of manufacturing said logs for the same price he had previously received of Ward & Van Vieker was no more a good consideration for such a promise than was the promise of a party to sell goods for their full value to a solvent debtor a good consideration for a promise to pay the debt of a third person, as held in Pfeiffer v. Adler, 37 N. Y. 164. The plaintiff relinquished no lien, parted with no rights upon the faith of the defendant’s promise. It is not pretended that such promise was made, received or accepted as a substitute for the original demand of the plaintiff against Ward & Van Vieker, or that said demand was in any way extinguished. A naked parol promise to pay the debt of another without consideration would be void at common law, and with a good consideration such promise is void under the statute because it is not in writing. The plaintiff doubtless had a claim under contract of sale or assignment made by Ward & Van Vicker to the defendant to require him to account as trustee for the property which came to his hands under such sale or assignment, and for payment rate-ably of his proportion of the assets in the defendant’s hands, but this action is not brought for any such purpose, and is premature if such were its object. I do not see the slightest basis for this action within the well-considered case of Mallory v. Gillett, 21 N. Y. 412. The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event. Judgment reversed and new trial granted.