
    Jacob M. Block, Appellant, v. Herman Galitzka, Respondent.
    Second Department,
    July 24, 1906.
    Contract — original agreement by owner of building to see sub-contractor paid.
    When it is shown that a sub-contractor engaged in the erection of a building stated to the owner that he feared he would not be paid, and the owner, in . order to induce him to continue work, made a personal promise to see him paid, after which the work was done for the owner personally without reference to the contractor, an original contract by the owner is established on which he is liable.
    Gatsob, J., dissented, with opinion.
    Appeal by the plaintiff; Jacob M. Block, from a judgment of the Municipal Court of the city of Hew York in favor of the defendant, rendered on the 12th day of December, 1905, dismissing the plaintiff’s complaint upon the merits after a trial without a jury.
    
      Alvin C. Cass, for the appellant.
    
      William J. McArthur, for the respondent.
   Rich, J.:

Bo opinion was written by the trial justice, and the record does not disclose the ground of his decision.

The defendant entered into a contract with one or more contractors for the erection of one or more buildings, among whom was one Assip, who sublet certain of the steel work to one Hoff, the plaintiff’s assignor. While the work was in progress — about July 1, 1903 — before, as Hoff says, “ hardly any ” of. the work had been done or materials furnished, Hoff had a conversation with defendant, at the building upon which he was working, in which he told the defendant that he did not feel safe in regard to his payments and did not care to go on with the work without an understanding that he (defendant) would, guarantee his payment, to which the defendant replied, “ All right, Mr. Hoff, if that is the case I will see that you are paid.” Between that time and the completion of the work on September seventeenth, Hoff spoke to the defendant several times with reference to payment for his work, and was told, “ Don’t fear, Mr. Hoff, I will take care of you,” that “ he will see that I get it.” This agreement and conversations, testified to by Hoff, were not denied or in any manner controverted by the defendant', who was sworn as a witness in his own behalf upon the trial. The plaintiff’s assignor completed his work on the faith of this agreement; he had no communication with Assip, did no work for him and furnished him no materials after the conversation with defendant about July first. There was a balance due and unpaid Hoff upon his contract of $271.05, which he subsequently assigned to the plaintiff, who brought this action to recover the same as on an original undertaking. This evidence, wholly uncontradicted, from a witness in no wise impeached, the trial court was not at liberty to disregard (Littlefield v. Lawrence, 83 App. Div. 327), and it established a valid and enforcible contract. (Mannetti v. Doege, 48 App. Div. 567, and authorities therein cited ; Breen v. Isaacs, 49 Misc. Rep. 127; 96 N. Y. Supp. 741.)

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

Hirsohberg, P. J., Hooker and Miller, JJ., concurred; Gayhor, J., read for affirmance.

Gaynor, J. (dissenting):

The justice gave the right judgment, it seems to me, viz., for defendant. Assip contracted, with the defendant, the owner, to do work and furnish material in erecting a building. Hoff was a subcontractor in writing to Assip, and claimed of the defendant $271.05, the unpaid balance of his contract price with Assip. It not being paid, he assigned his claim to the plaintiff, who brought this action upon it.

The facts are these: Hoff (plaintiff’s assignor) entered upon his contract with Assip, and Assip paid him $400 for work and material on the contract — all that was then due. Hoff then says he wanted to feel safe that he would be paid thereafter, and saw the. defendant. He tells what the defendant said to him — that he would see that he got his money — that he would not pay it to Assip, but hold it back— that he would take care of it. He did no more than owners do every day, viz., promise to take care of sub-contractors by holding their money from the contractor until he pays it. It will not do to pick'out one sentence— all must be taken. And the defendant kept Ms word. He held back the money from Assip, and with the latter’s consent ¡laid Hoff $500, leaving the balance sued for. That is not paid because a lien has been filed against Assip for more than that sum and more than is due Assip. When the plaintiff, after his contract was finished, talked to the defendant of tiling a lien, the defendant did no more than renew his former promise to hold back the money.

It seems to me the justice would have wronged the defendant by giving judgment against him.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  