
    David T. Bayles et al., Resp’ts, v. Howard Wallace, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    Contract — Statute of frauds.
    A promise by the owner of a building to become responsible for lumber furnished to a contractor for use in its erection, made after a refusal to furnish more unless such promise was made, is an original undertaking and not within the statute of frauds.
    Appeal from judgment in favor of plaintiffs and from order lenying motion for a new trial on the minutes.
    
      Thomas J. Hitch, Jr.t for app’lt; Thomas S. Mount, for resp’ts.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict rendered in the county court of Suffolk county in favor of the plaintiffs against the defendant and from an order denying a motion for a new trial on the minutes of the court.

The action was brought for the recovery of a balance due upon an account for lumber used in the erection of a building for the defendant.

, The contractor for the erection of the building was Samuel H. Brewster, and the agreement to furnish the lumber was originally made with him, but the claim of the plaintiff, upon which this action is based, is that after he had delivered some lumber under his agreement with this Brewster he became suspicious and informed the defendant that unless he became responsible for the lumber he would furnish no more, and that the defendant then agreed to become responsible for the lumbef delivered subsequent, to that time.

That agreement was denied by the defendant, and the two theories were presented to the jury with instructions to render a verdict for the plaintiff if the agreement was made as he claimed, and to find for the defendant if it was not made.

The jury.rendered a.verdict for the plaintiff and we.must therefore assume that the agreement was made according to the testimony of the plaintiff.

Assuming the existence of the agreement the defendant became the original debtor and the contract did not fall within the statute of frauds because it was an original undertaking.

There was no error in the charge of the trial judge, but, on the contrary, the case was properly presented to the jury by the charge.

The verdict is evidently just, and fully sustained by the evidence.

The judgment árid order denying the motion for a new trial] should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  