
    James K. Kelly et al., Respondents, v. Isaac L. Smith, Appellant.
    (City Court of New York, General Term,
    June, 1897.)
    Statute of Frauds — Original promise — Consideration.
    A promise, made by a person who is engaged in erecting a building in connection with another, to whom dealers in iron refuse to furnish it because the affair's of the latter are involved, that he will pay for the iron if billed and sent to him, is an original promise upon the part of the person erecting the building, whose consideration consists in the delivery to him of the iron, and consequently the promise is not within the Statute of Frauds.
    This is an appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.
    A. C. Fransioli, for appellant.
    Hector M. Hutchings, for respondents.
   O’Dwyer, J.

This action is brought to recover a balance for material delivered.

The complaint alleges that on or about- the 16th day of August, 1895, these plaintiffs contracted with one Frank Bretell, to furnish iron beams and lintels for four houses in West One Hundred and Forty-eighth street, commencing 325 feet west of Seventh avenue, then being erected by him in connection with the defendant in this action, for the sum of $690.

That after the making of said contract and before the delivery of any of the materials specified therein, liens were filed against said houses, and the said Bretell became involved.; thereupon .these plaintiffs saw the defendant and objected,, to furnishing the goods in accordance with the contract, and a contract was then and there entered into between these plaintiffs and the defendant, wherein and whereby plaintiffs agreed to furnish to the defendant the goods and materials previously agreed to be furnished to Bretell, for the same price, to-wit,- the sum of $690, and subsequently agreed to furnish and deliver eight six-inch eye-beams, forty pounds, four feet long at two and one-half cents per pound, mating a total of $10.40. The whole contract coming to $700.40." The answer is a general denial.

On the trial, the plaintiff Kelly testified as follows: “We had an order for a hill of iron for some houses- in One Hundred and Forty-eighth street, Hew York. The original conversation with Mr. Smith was by my partner, Mr. Triest; my conversation with Mr. Smith was in relation to this bill of iron which had been previously sold to Mr. Bretell, and I went to. Mr. Smith, and I told him I was fearful of sending the goods to- Mr. Bretell, and that we should prefer to send that iron to him. Mr. Isaac L. Smith was the party I saw, and he said that was all right, to count Mr. Bretell out, and that he would make the purchase of that bill of iron, and Mr: Smith repeated that; I said that was all right; we sent the bill of irons to this building in One Hundred and Forty-' eighth street, between Seventh and Eighth avenues;, the amount was about $690; we subsequently received moneys on account of that purchase; we received the sum of $500; there were some plates subsequently furnished after the first delivery, and the balance remaining I think was about $220; the bill shows a balance of $200.40, that is correct.”

The defendant denied having any such conversation with the plaintiff Kelly, and upon this conflict in the evidence the learned trial judge charged the jury that if the contract was' made as testified to by the plaintiff Kelly, then, the plaintiff was entitled to a verdict, otherwise not.

The only exception in the case arises on a motion for a dismissal of the complaint when the plaintiffs rested, and for a direction of a verdict in the defendant’s favor when the case was closed; also that a deed from the defendant and his wife to one Bretell was offered in evidence by the defendant, to show that the defendant in this case is not the owner of the property, and has no interest, ■in the whole affair. ,

It is urged by the appellant upon this appeal that it was incumbent on the respondents to prove a written contract, valid in law, without the defendant pleading the Statute of Frauds, and that the plaintiffs failed to make out a case, inasmuch as the.com tract sued upon is within the Statute, of Frauds.

That statute, it- appears to us, has no application to the case-under consideration.

The contract relied upon was not. the payment of' a debt of another, but a new contract entered into between the plaintiffs and defendant, the consideration of which was the delivery of the iron. '■

This being so, it was immaterial whether the defendant had an interest in the property, and upon the conflict in the evidence as to the making of this contract, it was proper for the court to submit the same to the jury for its determination, and to. deny the motion of the defendant to direct a verdict in his favor.

On the argument of this appeal, it was stipulated that the case contains all the evidence, and after a thorough examination of the record, we are satisfied that the verdict was not contrary to the evidence, or against the weight of evidence.

The judgment and order appealed from should he affirmed, with costs.

Conlan- and Schuchman, JJ., concur.

Judgment and order affirmed, with costs.  