
    Nathan Reisler and Jacob Klein, Respondents, v. Rachel Silbermintz, Appellant, Impleaded with Jacob Sweetman and Emanuel Menline.
    
      Statute of Frauds — whai is an original promise by an owner of a building to pay a sub-eonto'actor for work already done and, work to be done on the building.
    
    Where, after the abandonment of a building contract by the principal contractor, the owner of the building makes an oral agreement with a person to whom the principal contractor had sublet the iron work required by the contract, and who, prior to the abandonment, had furnished a portion of such iron work, that, if such sub-contractor would finish such iron work, the owner would pay him for all the iron work, such promise is an original promise, founded upon a valid consideration moving to the owner, and entitles the sub-contractor to recover from the owner, not only for the work done and materials furnished subsequent to the making of the new promise, but for that which had been done and furnished prior thereto.
    Appeal by the defendant, Rachel Silbermintz, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 24th day of February, 1904, upon the verdict of a jury,- and also from an order entered in said clerk’s office on the 29th day of February, 1904, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Saul Bernstein, for the appellant.
    
      Joseph Wilkenfeld, for the respondents.
   Patterson, J.:

This action was brought to foreclose a mechanic’s lien, but was not sustained in that form, and it eventually was tried and determined as one to recover on a contract to pay for work and labor done and materials furnished by the plaintiffs to the defendant Silbermintz in connection with certain alterations to a building in the the city of New York belonging to her. The allegations of the complaint should be considered in connection with the object for which the action was originally instituted. There are averments leading up to the right of the plaintiffs to enforce a lien, some of them not necessary to a claim on a mere money demand, but there is sufficient alleged in the complaint to support such an action. It is set forth that the defendant, Rachel Silbermintz, and one Jacob Sweetman, in May, 1901, entered into a contract by which Sweet-man was to build and erect additions and alter the building referred to, and that thereafter and about the 14th of May, 1901, the plaintiffs entered into an agreement with him wherein and whereby they contracted to do the iron work and furnish the materials therefor in and about the building, in accordance with plans and specifications, and that he agreed to pay them the sum of $340 therefor; that on the twenty-sixth of June Rachel Silbermintz agreed to pay to the plaintiffs, according to the direction or order of Sweetman, $340, and the order was accepted by her, but only upon condition that Sweetman would comply with the terms and conditions of his agreement with her, and on the further condition that sufficient funds would be in her hands; that thereafter, and after the acceptance of the order, Sweetman abandoned his contract, and that thereupon Rachel Silbermintz agreed to and with the plaintiffs that they should perform all the work, labor and services and furnish all the materials required of them, and for such work, labor and materials so to be furnished she agreed to assume the contract between Sweetman and the plaintiffs and to pay them the sum of $340 as consideration therefor; that between June and October, 1901, the plaintiffs, at the special instance and request of Rachel Silbermintz, performed the work and labor and furnished the materials, in value $340, no part of which has been paid.

The answer of Mrs. Silbermintz puts in issue the material allegations of the complaint, but sets up the making of a contract between herself and Sweetman, by which he was to do all the work of alterations and repairs for a sum of money specified; that in June she and Sweetman entered into a contract for extra work and materials; that the work and labor done and the materials furnished by the plaintiffs in and about the premises were done and furnished by them under and pursuant to a contract with Sweetman; that on or about the 26th of June, 1901, Sweetman delivered to her an order in favor of the plaintiffs for the payment of $340, which she accepted conditionally, provided that the contract between Sweet-man and herself should be fully complied with and the work thereunder be fully completed, and that no part of Sweetman’s work should be abandoned for any period of time, and that there should be sufficient funds in her hands at the time of the completion to meet and pay the above-mentioned and all other orders on and accepted by her.

The proofs introduced at the trial authorized the jury to find that the plaintiffs did the work and furnished the materials, the value of which they sought to recover, and that Sweetman abandoned the contract in an early stage of attempted performance; that after such abandonment, the defendant Silbermintz, through her husband, her admitted agent, entered into a new arrangement with the plaintiffs by which, in consideration of their going on and completing their work, she promised to pay them the whole value thereof. The verdict of the jury having established these facts, the propositions of law now presented and urged by the appellant are the following: First, that the plaintiffs are not entitled to recover because the only obligation assumed by the defendant Silbermintz was to answer for the debt, default or miscarriage of another, and her contract, not being in writing, is unenforcible under the Statute of Frauds. Second, that there was no consideration for the promise made by the plaintiffs, even if as matter of fact it were made.

As the facts are made to appear the plaintiff’s promise was an original one. (White v. Rintoul, 108 N. Y. 227; Raabe v. Squier, 148 id. 81; Merserau Co. v. Washburn, 6 App. Div. 404.) Dp to the time of the acceptance of the order for the payment of moneys to the plaintiffs by the defendant Mrs. Silbermintz, on her contract with Sweetman, the only original contract relations of parties as to the iron work were such as existed between Sweetman and the plaintiffs. The promise she made by the acceptance of that order was only to pay, among other conditions, in case Sweetman did not abandon his contract. The plaintiffs did not bind themselves by her acceptance of the order to go on and complete their work and furnish their materials under all conditions and at all hazards. "When Sweetman actually abandoned his contract, and as the evidence also shows, was released from it by Mrs. Silbermintz, they were under no obligation to proceed further in the matter. By the abandonment and release, the source from which they could be paid by Sweetman was cut off. The situation then was, according to the evidence, that the defendant Silbermintz made the new arrangement with the plaintiffs that if they would go on and finish their iron work, she would pay them for the whole work. That was an original promise founded upon a consideration of benefit to herself, namely, the performance of the work and the furnishing of the materials, which the plaintiffs were under no obligation to furnish to her except as they came under it by way of a new promise to pay them. That this was a good consideration, not only for the work to be done and the materials furnished after the new promise, but for that which had been antecedently furnished, is established by the cases cited. All the arrangements existing between the parties arising upon the order for the payment of money were displaced and superseded by the new arrangement.

During the trial evidence was taken concerning the execution and acceptance of the order for the payment of money by Mrs. Silbermintz, and it appeared that the order was executed at the office of her attorney. The defendant’s counsel,- on cross-examination, asked the witness Sweetman who sent for him to go to the office of the attorney and whether he (Sweetman) asked the plaintiffs to go to the office of the attorney with reference to these matters, and those questions were ruled out. It is now urged that the court should have required the witness to answer them. It was not material error, if error at all, to exclude the evidence. The whole case turns upon the relations of the plaintiffs and the defendant Silbermintz being determined by the order or by an entirely new and distinct and independent promise based upon a sufficient consideration.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs.  