
    Flagler v. Lipman.
    (New York Common Pleas
    General Term,
    February, 1893.)
    The test to determine whether an agreement to pay the debt of another is within the Statute of Frauds, is whether the party sought to he charged is the principal debtor, primarily liable, or whether he Is only liable in case of default of a third party.
    Appeal from a judgment of the General Term of the City Court, affirming a judgment for plaintiff in the court below, and an order denying a motion for a new trial. The opinion states the case.
    uS'. A. Jacobs, for defendant (appellant).
    
      Menken Bros., for plaintiff (respondent).
   Bookstaveb, J.

This action was brought by the plain, tiff upon a verbal promise made by the defendant, to be answerable to' the former for the payment of $873, the balance, due him from one William 0. Schmidt, on account of labor and material furnished the latter on certain premises belonging to him, the consideration for such promise being a release, under seal of Schmidt, from all indebtedness for said work. On the faith of this agreement plaintiff executed to Schmidt the release bargained for, and at the same time, received from the defendant $223, and afterwards the further sum of $200, leaving a balance of $450, for which recovery is sought in this action. The answer denies every allegation of the complaint, except that plaintiff received the two sums of money from defendant, and in respect to them alleges that they were paid by him at the request, with the consent and for the account of one William Bell (the former owner of the property in question and the person from whom Schmidt, derived title thereto), who was indebted to plaintiff.

On the trial it appeared that Lipman, the defendant herein, together with another, held matured second' mortgage on the property to the amount of $13,000, subject to a purchase-money mortgage of $118,500.

The jury found a verdict in favor of the plaintiff, and thus decided that Schmidt, not Bell, owed the plaintiff the money in suit, and it appears from the case that the plaintiff was in a position to file a mechanics’ lien upon the premises, which would have been to the injury of the defendant, the mortgagee, hence his interest in preserving the premises from such an incumbrance.

Notwithstanding this, and notwithstanding the fact that the defendant, a lawyer, presumed to know the law, by means of this agreement obtained from the plaintiff, a man not skilled in the law, a release of his claim, he, in the court below, sought and now seeks to avoid the verbal agreement, on the ground that it has no validity under the Statute of Frauds.

It is quite true that that statute requires an agreement to pay the debt of another to be in writing, and signed by the person, sought to be charged therewith, but the test to be applied in such a case is, whether the party sought to be charged is the principal debtor, primarily liable, or whether he is only liable in case of the default of a third person. In other words, whether he is the debtor or whether his relation to the creditor is that of a surety for the performance by some other person of the obligation of the latter to the creditor. Brown v. Weber, 38 N. Y. 187. A verbal undertaking is within the statute, unless the defendant, before making the promise, had so dealt as to make the debt his own, or had incurred a duty to pay the amount due the plaintiff. Aclkey v. Parmenter, 98 2 N. Y. 425.

In this case the defendant had promised to pay Schmidt’s debt if plaintiff would release Schmidt and rely solely and only -Upon him for payment; under such a promise he became the original obligor and, therefore, is not within the statute, and his promise need not be in writing.

The consideration for such a promise was quite sufficient. The release relieved the property in which the defendant was interested from a possible mechanics’ lien, and forever prevented the plaintiff from asserting his claim against Schmidt. There was, therefore, not only a valuable consideration for the agreement on defendant’s part, but a detriment to the plaintiff.

There is no proof to sustain appellant’s contention that plaintiff had not performed his contract with Sclnnidt at the time the agreement was made, nor is any such nonperformance pleaded.

As appears from the case, the work done by plaintiff was done under Schmidt’s direction and, as before shown, he was liable to the plaintiff for its payment. It was not necessary to show, therefore, that the work was done to Bell’s satisfaction.

Upon the appeal to this court our attention was not called to any other exceptions than those noticed.

The judgment should, therefore, be affirmed, with costs.

Bischoff and Pryoe, JJ., concur.

Judgment affirmed.  