
    Howard J. M. Cardeza and Louis Gilliams, Respondents, v. Nellie Bishop, Appellant.
    
      Statute of Frauds — a promise by a woman to assume debts of her deceased husband if his creditors will sell goods to her on credit, is not an original promise.
    
    A- promise made by a woman, who, without any transfer of the property' to her, assumed control of her deceased husband’s stock of goods and continued his business, to persons having claims against her husband’s estate for goods sold to him, that she will assume the indebtedness if they will continue to sell her the same line of goods on credit, is not an original promise, and, if not in writing,, is void under the Statute of Frauds.
    
      Appeal by the defendant, Nellie Bishop, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, in favor of the plaintiff's, rendered on the 2d day of June, 1900.
    
      Herman H. Baker, for the appellant.
    
      Thomas P. Hall, for the respondents.
   Goodrich, P. J.:

John M. Bishop, the husband of the defendant, was engaged in the liquor business when he died. The defendant, without any transfer of the property to her, assumed control of the stock of goods and- continued the business. The plaintiffs, who had sold! goods to the husband, were pressing the widow for payment, but stated that if she would assume'the-account of her husband they “ would leave the goods there.” The defendant asked the plaintiffs whether they would continue to sell her this same line of goods, and was told that they would, provided she would assume the indebtedness of her husband. There was testimony that she agreed to do so orally, though this statement was denied. The plaintiffs claim that this was an original promise and not within the Statute of Frauds.

Two cases are cited by the respondents’ counsel, White v. Rintoul (108 N. Y. 222) and First National Bank v. Chalmers (144 id. 432). The opinions in both eases were written by Judge Finch. In the White case, he reviewed the doctrine, which distinguishes between original and collateral promises and concluded “ that where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment irrespective of the liability of the principal debtor.”

In the First National Bank case, Spruce & Co. had confessed judgment to the defendants for various sums due from them to the defendants and other parties, among them the indebtedness due the plaintiff bank, and- there was an actual transfer of property by Spruce & Co., the former owner, to the defendants, who took possession thereof and agreed to assume and pay the debts of Spruce- & Co. to the plaintiff. The court held that where a debtor transfers property to a third person, in consideration of an agreement of the latter to assume and pay the debt, and he thereupon promises the creditor to pay, he makes the debt his own, and so assumes an independent duty of. payment irrespective of the liability of the principal debtor, and becomes primarily liable for the discharge of the debt.

In the present case the plaintiffs had no lien by judgment or execution or otherwise upon the property of the deceased except that as creditors they had a claim against his estate generally. They relinquished no lien and only agreed to sell the defendant new goods on credit, giving her reasonable time for payment. This is the only transaction which the plaintiffs contend was a consideration for the new promise. I find no case, and none is cited, which justifies the doctrine that such an agreement is a sufficient consideration to vali date the agreement as an original'promise to assume 'and pay the debt of another.

The judgment must be reversed.

All concurred.

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