Biener Contracting Corp. v. Elberon Restaurant Corp.

Appellate Terms of the Supreme Court of New York

Biener Contracting Corp. v. Elberon Restaurant Corp.

13 Misc. 2d 436, 179 N.Y.S.2d 941

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 26, 1958

StatusPublished

This text of 13 Misc. 2d 436 (Biener Contracting Corp. v. Elberon Restaurant Corp.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Biener Contracting Corp. v. Elberon Restaurant Corp., 13 Misc. 2d 436, 179 N.Y.S.2d 941 (N.Y. Ct. App. 1958).

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Opinions

Per Curiam.

The parties here did not contemplate that the appellant should become the principal debtor primarily liable. The original debt remained and what he promised to pay was the debt of the original obligors. There is nothing in the record from which the court could determine that the appellant made himself the principal debtor primarily liable. The oral promise to pay the debt of another is unenforcible under the Statute of Frauds (Richardson Press v. Albright, 224 N. Y. 497; Watson v. Quilter, 220 App. Div. 663; Zweighaft v. Lang, 194 Misc. 370, affd. 276 App. Div. 1017).

The judgment should be modified by reversing the judgment against appellant and dismissing the second cause of action, and as modified affirmed, with $25 cost to appellant Wishnetzky.

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Per Curiam.

The parties here did not contemplate that the appellant should become the principal debtor primarily liable. The original debt remained and what he promised to pay was the debt of the original obligors. There is nothing in the record from which the court could determine that the appellant made himself the principal debtor primarily liable. The oral promise to pay the debt of another is unenforcible under the Statute of Frauds (Richardson Press v. Albright, 224 N. Y. 497; Watson v. Quilter, 220 App. Div. 663; Zweighaft v. Lang, 194 Misc. 370, affd. 276 App. Div. 1017).

The judgment should be modified by reversing the judgment against appellant and dismissing the second cause of action, and as modified affirmed, with $25 cost to appellant Wishnetzky.

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Bluebook (online)

13 Misc. 2d 436, 179 N.Y.S.2d 941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biener-contracting-corp-v-elberon-restaurant-corp-nyappterm-1958.

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