Berlescu v. Stearns

26 Misc. 841, 57 N.Y.S. 1

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1899
• Status: Published

Opinion

Leventritt, J.

It is the contention of the plaintiff that one A. Ohellborg was indebted to the firm of Randolph, Paige & Co., for goods sold and delivered; that upon threatening suit the defendant, who was the attorney for Chellborg, made an oral promise that if indulgence were extended, he would pay Chellborg’s debt. Upon his default, the plaintiff, to whom the claim was assigned, instituted this action, to which the defendant pleaded the Statute of Frauds. The plaintiff relied solely upon the verbal undertaking of the defendant, who, it was conceded, had signed no agreement, note or memorandum to answer for the debt. Hot-withstanding, judgment was rendered against the defendant.

That disposition of the issue was clearly error. The promise was to answer for the debt of another, and, not being evidenced by any writing, is void under the Statute of Frauds, and is validated by the fact that the creditor, at the request of the defendant, granted forbearance or indulgence to the debtor. Ackley v. T’armenter, 98 N. Y. 425.

The judgment must, therefore, be reversed.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.