
    (75 Hun, 414.)
    PHELPS v. ROWE.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    Statute or Frauds—Promise to Pay Debt oe Another.
    One N., being indebted to both plaintiff and defendant, and having a claim against a third person, agreed to assign such claim to defendant, who promised, on collection of the claim, to pay the debt of N. to plaintiff. Held, that such promise was not within the statute of frauds.
    Appeal from Monroe county court.
    Action by Henry C. Phelps against Lucian Rowe. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    P. M. French, for appellant.
    John Desmond, for respondent,
   LEWIS, J.

One Jackson Utter owed the defendant about $1,500 for rent of a farm. He at the same time was indebted to plaintiff in the sum of $240 for apple barrels which he had purchased of him, and for which he had agreed to pay the plaintiff when he sold his apples. Utter sold his apple crop, including these barrels purchased of plaintiff, to a Mr. Burlingame for the snm of $931.25. A controversy arose between Utter and Burlingame concerning the apple bargain, and Burlingame refused to pay for them. Utter thereupon made a verbal agreement with the defendant to the following effect: Utter was to transfer his claim against Burlingame to the defendant. Defendant was to collect it, and, when collected, he was to pay out of the money received to the plaintiff the amount of his claim against Utter. Utter made, accordingly, a formal written assignment of the said claim to defendant. Nothing was said in the writing as to what should be done with the money when collected. Plaintiff was not cognizant of the agreement or assignment until after they were made. When informed of them, he called upon the defendant, and the defendant promised him that he would pay his claim against Utter when he succeeded in collecting the money of Burlingame. Burlingame paid the money to the defendant, and, though requested so to .do, he refused to pay plaintiff’s claim, and this action was prosecuted in the municipal court of Rochester, when plaintiff had a verdict against the defendant for the $240. The action was retried in the Monroe county court, where plaintiff obtained another verdict, and an appeal was taken to this court. It is the contention of the counsel for the appellant that the promise, not being in writing, was void under the statute of frauds. We do not think so. Utter was under no legal obligations to transfer his claim against Burlingame to the defendant. He did so upon condition that defendant should out of the moneys, when collected, pay plaintiff’s' claim. The defendant, having accepted the claim upon that condition, became the debtor to plaintiff for the amount of the Utter debt when he obtained the money of Burlingame, and was liable to the plaintiff in an action therefor. Lawrence v. Fox, 20 N. Y. 268. The judgment and order appealed from should be affirmed, with costs. All concur.  