Windsor Const. Co. v. Ruland

PENDLETON, J. [1,2] This is a trial of two issues of law raised by plaintiff’s demurrer to the separate defense of the statute of frauds in the answer of defendant Ruland and in the answers of the defendants Griswold and Brush. The separate defense is defective in substance. The allegations of the complaint, not being denied in the separate defense, must be taken as true, and it appears therefrom that defendants’ promise was an independent original promise, quite different from the Forty-Eirst Street Realty Company’s promise, founded on a new consideration moving to defendants, and therefore not within the statute. Schwoerer & Sons, Inc., v. Stone, 130 App. Div. 796, 115 N. Y. Supp. 440, affirmed 200 N. Y. 560, 93 N. E. 1116; White v. Rintoul, 108 N. Y. 222, 15 N. E. 318; Cooper & Polak Struc [388] tural Iron Works v. Rosing et al. (Sup.) 147 N. Y. Supp. 241; Kleinman v. Auerbach, 82 Misc. Rep. 436, 143 N. Y. Supp. 1033. [3] Defendant urges that the allegation of the separate defense, that the promise was a promise to answer for the debt, etc., of another, is admitted as a fact by the demurrer. The allegations of fact in the complaint, which stand admitted for the purpose of this trial of the issue of law (Berg v. Bates, 153 App. Div. 12, 137 N. Y. Supp. 1032; Schattman v. Maze Realty Co., 150 App. Div. 559, 135 N. Y. Supp. 47; Douglas v. Coonley, 156 N. Y. 521, 51 N. E. 283, 66 Am. St. Rep. 580), show that it was an independent original promise with a new consideration, and in view thereof it is apparent that the allegation in the separate defense to the effect that the promise was a promise to answer for the debt, etc;, of another is a conclusion, and, being a conclusion, it was not admitted by the demurrer. If defendant, as part of the separate defense, had denied the. allegations of the complaint referred to, a different question would have been presented. An answer almost identical with the one here was held demurrable in Kleinman v. Auerbach, 82 Misc. Rep. 436, 143 N. Y. Supp. 1033. Calling it a promise to answer for the debt of another does not make it so. Under our system of pleadings, facts are to be alleged. Here the complaint alleged a promise to do a great deal more than the Eorty-First Street Realty Company had promised to do, and the consideration was the doing by plaintiff of a great deal more than it had undertaken to do in its contract with the Forty-First Street Realty Company. To bring the promise within the statute, it was necessary to deny these facts. The effect of their admission by not denying could not be destroyed by saying it was a promise to answer for the debt of another, when the facts admitted show it could not be. Demurrer sustained, with leave to defendant to serve an amended answer within 30 days on payment of costs of demurrer. Order signed and filed.