
    William D. Alley, Respondent, v. William J. Turck, Appellant.
    
      fjonsideration—a sub-contractor, refraining from filing a mechanic’s lien, on the promise of a surety for, and the assignee of the claim of, the contractor to pay the latter’s debt to the sub-contractor, may enforce the promise.
    
    Where a sub-contractor, at the request of the surety for the contractor, and upon a promise by the surety to pay the claim of the sub-contractor for work done upon a building, omits to file a mechanic’s lien, such omission furnishes a sufficient consideration for the promise of the surety to pay the sub-contractor his debt.
    Where the surety is responsible for the performance of the work upon a building by the contractor, who has assigned to the surety all the balance due upon the contract, the omission of the sub-contractor to file a lien (and thus reduce the amount which the surety is entitled to receive from the owner of the property) constitutes a new consideration beneficial to the surety and assignee of the contract, and his promise to pay the sub-contractor is thereby taken out of the operation of the Statute of Frauds.
    The promise of the surety then becomes original, and he comes under an independent duty to pay the sub-contractor, notwithstanding the fact that the primary debt from the contractor to the sub-contractor still remains unpaid
    Appeal by the defendant, William J. Turck,' from a judgment of the County Court of Ulster county in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 11th day of January, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of January, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      Howard Chipp, Jr., for the appellant.
    
      Brinnier & Newcomb, for the respondent.
   Putnam, J.:

In the month of March, 1893, one Samuel Brundage contracted to erect for one Robert Mains a house, and to do all the work and furnish all the materials therefor. The plaintiff entered into an agreement with said Brundage to do the mason work required by said contract. The defendant was a surety for Brundage, becoming responsible to Mains for the completion of the house according to the contract. Brundage was then indebted to the defendant, and the latter was about to furnish the former with lumber necessary to perforin said contract. Brundage thereupon, and shortly after the execution of his contract with Mains, assigned his (Brundage’s) interest in said contract to the defendant, in form by an absolute assignment, but intended as a security to the latter. After the assignment Brundage proceeded to erect the house and perform the contract, and received from the owner the greater part of the payments due on the contract. The last payment, however, of $1,100 was collected by the defendant.

After the plaintiff claimed to have completed his mason work under his agreement with Brundage, he testified that he had the following conversation with the agent of the defendant: “ I went down to see Mr. Turck, and I said, Mr. Turck, what is there about my money on the Mains job ? I have begun to get uneasy, and if I don’t get any money I will put a lien on it. He said, there is nothing to be uneasy for, don’t put a lien on it. We are Mains’ bondsmen, and when Mains pays us we will pay you every dollar you have got in it. * * * On the Monday after I went and saw Mr. Turck; he said Mr. Mains was finding fault with regard to the cellar bottom. He said as soon as he was satisfied he would pay me every dollar I had in it. He said him and I were the men that had to deal. I had nothing to do with Brundage, no more than a man out West. He said that Mains insisted upon having the bottoms ripped wholly out. * * * Mr. Turck then told me to go on and put on the cement and he would pay every dollar. I did so.”

The plaintiff further said that, relying upon the promise of Mr. Turck, he did not file a notice of lien. The above-quoted testimony of the plaintiff is denied by that of the defendant’s agent, but its truth must be deemed established by the verdict of the jury.

The plaintiff brought this action upon the said promise of the defendant to pay the balance of his claim against Brundage, and recovered in the court below. It was shown that, after the promise, the defendant received from Mains $1,100, the balance due on the contract, but that he refused to pay the plaintiff according to his agreement.

The defendant insists that the promise of the defendant, on which the plaintiff seeks to recover, was without consideration, and, if otherwise, was a promise to answer for the debt of another, and not being in writing was void by the Statute of Frauds.

I concur with the view of the learned counsel for the appellant that the additional work put upon the cellar bottom of the Mains house by the plaintiff at the request of the defendant, after the conversion above detailed, did not constitute a sufficient consideration for the promise of the defendant upon which the action was brought. The plaintiff contracted to do mason work to the entire satisfaction of the owner. It appeared that Mains was not satisfied, and it was not shown that his objection to the work was unreasonable. Hence,, the plaintiff failed to show that, in performing the additional work on the cellar bottom-, at the request of the defendant, he did what, he was not legally compelled to do.

I think, however, that the omission of the plaintiff to file a notice of lien at the request of defendant’s agent, and upon the promise of' the latter to pay the balance due the former, afforded a sufficient consideration for the promise. It was said by Comstock, J., in Mallory v. Gillett (21 N. Y. 412-414), where a creditor released alien he had on a canal boat at the request and upon the promise of the defendant to pay the amount of the plaintiff’s claim, “the consideration was perfect.” Here the plaintiff waived his right to file a lien at the request of the defendant and relying on his promise. There was a sufficient consideration for the promise.

But, as held in the case cited, it requires something more than a. sufficient consideration to support á promise to answer for the subsisting debt of another in order to take the case out of the operation of the Statute of Frauds. It requires a new consideration beneficial the promisor. Where there is such a new consideration beneficial to the promisor, the Statute of Frauds will not apply. Thus, in White v. Rintoul (108 N. Y. 222), it was held as follows: “ It seems, a promise to pay a debt of another antecedently contracted, where the primary debt still subsists, is original, and so valid within the statute of frauds, although not in writing, when it is founded on a new consideration moving to the promisor and beneficial to him, and when by the promise he comes under an independent duty of paying, irrespective of the liability of the principal debtor.” (See, also, Mallory v. Gillett, supra; Ackley v. Parmenter, 98 N. Y. 425; Raabe v. Squier, 148 id. 81; Robinson v. Springfield Iron Co., 39 Hun, 634.)

At the time when the promise of the defendant was made,, on which the plaintiff seeks to maintain this action, the latter was entitled to file a notice of lien which would have secured the payment of his claim. He omitted to do so at the request of the defendant and on the promise of the latter to pay the balance due him. The defendant at the time was responsible to Mains for the completion of the house by Brundage according to the terms of the contract. He also had an assignment of the interest of Brundage in the contract with Mains, and was entitled to receive the balance due from the latter to the former; and after the promise counted on by the plaintiff, did receive §1,100, the amount of such balance. If the plaintiff had filed a notice of lien, Mains would have been entitled to deduct the amount thereof from the sum to be paid the defendant. In consequence of plaintiff’s omitting to file a lien, the defendant received from Mains seventy dollars and ninety cents more than he would had the lien been perfected. Hence, the defendant was directly benefited by the omission to file a notice of lien, induced by his promise.

It follows that there was anew consideration for the promise of the defendant on which the plaintiff relies, viz., the omission of the latter, at the request of the former, to perfect a lien by which the plaintiff could have secured the payment of his claim. This consideration was one moving to the promisor and beneficial to him. Therefore, the promise of the defendant to pay the debt due from Brundage to the plaintiff, although the primary debt still subsisted, was original and valid within the Statute of Frauds. By the promise, under the circumstances, the defendant came under an independent duty to pay the plaintiff’s claim, although the liability of Brundage continued. ( White v. Rintoul, supra)

In this view of the case, it is unnecessary to consider whether or not the verbal release of Brundage by the plaintiff was valid. The contract, under which plaintiff claimed, was anew agreement founded upon a new consideration beneficial to the defendant, and under which he became obligated to pay the balance due the plaintiff, although the liability of Brundage continued.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  