Engel v. Gordon

49 Misc. 641, 97 N.Y.S. 981

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinion

Greenbaum, J.

These two actions were brought for work, labor and services and were tried upon the theory that defendants agreed to pay the debt of one Krombein, who was indebted to plaintiffs for work, labor and services.

Krombein had undertaken to make up a lot of skirts for defendants, who were large manufacturers. Defendants furnished the materials and Krombein was to finish them up under contract of payment of a definite sum for each skirt Defendants had nothing to do with the employees of Krombein, who had hired them for himself, and who alone was under obligation to pay them.

The defendants, being unable to get their skirts from Krombein, were told by the latter that he was indebted to his workmen for work done on the skirts and, if defendants would pay these workmen, the skirts would be delivered up.

Accordingly, the defendants called at Krombein’s place and paid the men, on Krombein’s account, such varying sums as Krombein stated he owed them; and then, instead of delivering to defendants all the skirts for which they were accountable, it was discovered that a quantity of them had not been delivered.

Defendants traced the missing goods into the possession of the plaintiffs, Weisman and Engel, and recovered them by writ of replevin.

These actions are now brought on the theory that defendants are obliged to pay Weisman, who claims he was a foreman in Krombein’s shop and to whom Krombein was indebted for three weeks’ wages as foreman in the sum of $15, and also to pay Engel $125 for wages asserted to be due him by Krombein, under the general promise of defendants that they would pay Krombein’s workmen to obtain possession of their goods.

It is not shown that these plaintiffs did any work on the strength of the alleged, promise of defendants. Indeed, the actual services alleged to have been rendered were not legally proved. Judgment was rendered in favor of each of the plaintiffs. It is difficult to comprehend under what principle of law these judgments can be upheld. Concededly, the plaintiffs were not employed by defendants, hence no cause of action for work, labor or services was established.

If it is sought to hold defendants liable on their alleged promise to pay the debts of Krombein, such an agreement was without consideration and void under the Statute of Frauds; and no memorandum in writing agreeing to pay these alleged debts is shown to have been signed by them.

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

Soott and Giegeeich, JJ., concur.

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