
    (65 Misc. Rep. 142.)
    ACKLEY v. SKINNER.
    (Nassau County Court.
    November, 1909.)
    1. Frauds, Statute of (§ 23)—Promise to Pay Debt of Another.
    Where defendant, on purchase of a business, promises to assume a of the seller for goods delivered, it is an original undertaking, and not a promise to pay the debt of another.
    [Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.]
    2. Frauds, Statute of (§ 23) — Payment of Debt of Another — Written
    Agreement.
    Where a sale of a business and the execution of a written agreement stating the consideration were parts of the same transaction, and under the agreement the purchaser assumed a debt, of the seller, the transaction was not within the statute of frauds.
    [Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.]
    3. Frauds, Statute of (§ 152)—Pleading—Necessity.
    The statute of frauds is not available as a defense, unless pleaded.
    [Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 363; Dec. Dig. § 152.]
    Appeal from Justice Court.
    Action by Henry E. Ackley against Charles K. Skinner. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The complaint alleged a sale and delivery of merchandise to one Van Houten of the value of $59.22, and “thereafter and for a valuable consideration the above-named defendant assumed said indebtedness, and agreed and promised to pay to the plaintiff the said sum of $59.22.” The defendant denied that he had any knowledge or information sufficient to form a belief as to the sale and delivery of the merchandise and the assumption of the indebtedness and the promise to pay the plaintiff.
    Upon the trial it was proved that the plaintiff sold and delivered the goods of the value stated to Van Houten, who also testified that the defendant was to pay all bills due the plaintiff and that the payment of plaintiff’s bill was part of the purchase price upon the sale of the business made by Van Houten to the defendant. The following written statement was proven to have been executed by the defendant and was put in evidence:
    “Hempstead, N. Y., April 6, 1909.
    “This is to certify that I, Charles K. Skinner, have this Gth day of April purchased the business in Subway Inn, 14 Greenwich street, Hempstead, N. Y., from Rudolph Van Houten, and I agree to assume the debt to Pflug & Ackley of $59. Charles K. Skinner.
    “Witness:
    “William H. Ackley.”
    
      At the conclusion of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to establish a cause of action against the defendant. The motion was denied, and the defendant rested his case.
    Francis B. Taylor, for appellant.
    Maxson & Jones (Walter R. Jones, of counsel), for respondent.
    
      
      For other cases see same topic £ § number in Dec. & Am. Digs. 1907 to date, £ Rep’r Indexes
    
   JACKSON, J.

I do not think this is a case in which the statute of frauds applies. It is not the case of special promise to pay the débt of another. It is the. case of an original promise by the defendant to pay his own debt incurred in purchasing a business. Following the doctrine of Lawrence v. Fox, 20 N. Y. 268, it is immaterial whether the consideration which the defendant promised to pay for the business was to be paid to the person from whom the business was bought by him or to a third person, in this case the plaintiff in this action.

Even if this view of the case were not correct, the statute of frauds would not be available to the defendant, for the reason that he has not pleaded the defense. Crane v. Powell, 139 N. Y. 379, 34 N. E. 911.

Furthermore', I think the written instrument proved was sufficient to take the promise beyond the statute, that a consideration appears expressed in the instrument, and that there was sufficient legal evidence before the justice to warrant him in finding that the sale of the business referred to and the execution of the writing were, if not simultaneous, parts of one transaction.

The judgment should be affirmed.

Judgment affirmed.  