Cock v. Moore

25 N.Y. Sup. Ct. 31

Opinion

Gilbeut, J.:

I think the County Court erred in dismissing the complaint. The defendant did not undertake or promise for Stansbury, but for himself. Nor was the promise one that Stansbury should pay out of the money due to him from the defendant, but that the defendant would do so. Consequently Stansbury never had assumed, nor had he put himself in a position to become liable in the first instance to do that which the defendant undertook and promised to do. Stansbury left in the defendant’s hands sufficient funds to pay the plaintiff’s claim, and directed the defendant to make such application. The defendant promised Stansbury that he would do so. Subsequently the same promise was made to the plaintiff. The case I think is not within the statute of frauds but rather falls under the third class of promises stated by Comstock, J., in Mallory v. Gillett (21 N. Y., 433), namely, “Where, although the debt remains, the promise is founded on a new consideration which moves to the promisor. This consideration may come from the debtor, as where he puts a fund in the hands of the promisee, either by absolute transfer or upon a trust to pay the debt,” etc. (Lippincott v. Ashfield, 4 Sand., 611.) From the facts proved in this case the law would imply a liability to apply the fund in the defendant’s hands in the manner Stansbury directed him, and he undertook to do. (Barker v. Bucklin, 2 Den., 45; Lawrence v. Fox, 20 N. Y., 268; Barlow v. Myers, 64 id., 41.) When the law will imply a debt or duty against any man, his express promise to pay tlie same debt or perform tbe same duty must in its nature be original. (21 N. Y., 430.)

The judgment must be reversed and a new trial granted, with costs to abide the event.

DykmaN, J., concurred. Present- — Barnard, P. J., Gilbert and Dyicman, JJ.

Judgment of County Court reversed and new trial granted, costs to abide event.