
    Biener Contracting Corp., Respondent, v. Elberon Restaurant Corp. et al., Defendants, and Morris Wishnetzky, Appellant.
    Supreme Court, Appellate Term, First Department,
    June 26, 1958.
    
      
      Allan Rubin and Isidore A. Seltzer for appellant.
    
      Harry Lesser for respondent.
   Per Curiam.

The parties here did not contemplate that the appellant should become the principal debtor primarily liable. The original debt remained and what he promised to pay was the debt of the original obligors. There is nothing in the record from which the court could determine that the appellant made himself the principal debtor primarily liable. The oral promise to pay the debt of another is unenforcible under the Statute of Frauds (Richardson Press v. Albright, 224 N. Y. 497; Watson v. Quilter, 220 App. Div. 663; Zweighaft v. Lang, 194 Misc. 370, affd. 276 App. Div. 1017).

The judgment should be modified by reversing the judgment against appellant and dismissing the second cause of action, and as modified affirmed, with $25 cost to appellant Wishnetzky.

Hecht, J.

(dissenting). On the basis of the record, the court below was justified in awarding judgment against Wishnetzky. The testimony indicates that the parties intended that Wishnetzky become primarily liable for the balance due on the fixtures.

Accordingly, I dissent.

Hofstadter, J. P., and Tilzer, J., concur in Per Curiam opinion; Hecht, J., dissents in memorandum.

Judgment modified, etc.  