
    Abraham Fowler, Plaintiff and Appellant, v. Peter Moller, Defendant and Respondent.
    1. A promise by the assignee of a lease to the landlord, that if the latter wil permit him to remain in possession of the premises, he will pay the arrears of rent due from the lessee, is a collateral promise, and if not in writing, is void by the statute of frauds.
    2. J. H. F., tenant in possession of a store under a lease from P. M., sold out to his father, A. F., there then being $103.50 rent in arrear. A. F. took possession, and afterwards promised the landlord that if he “would allow him to remain he would pay the back rent due by his son.” A. F. (the father) occupied thereafter about six weeks, sold out the goods, and gave up the premises: Held, upon these facts, that A. F. was not liable for the arrears of rent, but only for the rent which became payable after he took possession.
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, December 15th;
    decided, February 12, 1859
    The case came before the Court upon an appeal from a judgment entered upon the decision of Philo T. Ruggles, Esq., as referee. He found that there was nothing due from the defendant to the plaintiff; but, on the contrary, that the plaintiff was indebted to the defendant in the sum of $5.14. Judgment for the defendant was entered upon his decision for that amount, with costs, being, in the whole, $85.69.
    
      The plaintiff demanded in his complaint the value of a rosewood sofa, alleged to be reasonably worth $95, and of a walnut centre table, alleged to be reasonably worth $55, delivered to the defendant, at his request, and sent to his residence, and prayed judgment for $150, with interest and costs.
    The answer denied only the value of the centre table. Delivery of the articles, and the value of the sofa, were therefore admitted. It averred that the centre table was made of bad and inferior materials, and made in a rough and unworkmanlike manner, and that it was not worth more than $35.
    The answer then averred, by way of counterclaim, “ that the plaintiff owes the defendant for the use and occupation of the defendant’s store, at the corner of Clinton and Madison streets,' in the city of Hew York, and, as the tenant of the defendant, and, as the lessee of the defendant’s premises, the sum of at least $150, besides interest from the 15th of March, 1856.”
    The plaintiff replied to the counterclaim, denying all the allegations relating thereto.
    The cause was referred to Philo T. Rugóles, Esq., to hear and determine the issues.
    The referee found as follows:
    1st. That the plaintiff, Abraham Eowler, delivered to the defendant, Peter Moller, in the month of June, 1856, and at his request, one rosewood sofa, and one walnut centre table, and that the said sofa was reasonably worth $95, and the centre table $45, thus making the whole amount of the claim which the said plaintiff established against the said defendant the sum of $140.
    2d. That at the time and before the said plaintiff delivered the said sofa and centre table to the said defendant, he, the said plaintiff, was indebted to and owed the said defendant for the use and occupation of the defendant’s store at the corner of Clinton and Madison streets, in the city of Hew York, and as the tenant and lessee of the said defendant’s premises, and over and above all offsets, the sum of $145.14.
    3d. That, at the time of the commencement of this action, there was hnd still is justly due and owing from the said plaintiff to the said defendant, over and above all offsets and counterclaim, the sum of $5.14.'
    
      The referee also arrived at the following conclusion of law:
    That the said plaintiff is not, and was not, at the commencement of this action, entitled to anything from the said defendant but that the said defendant was and is entitled to judgment against the said plaintiff for said sum of $5.14, together with his costs, and to have execution therefor.
    Exceptions were taken to the finding and decision of the referee, sufficient to raise all the questions.
    Upon the trial, evidence was given by each party on the subject of the value of the centre table, in controversy. And to establish his counterclaim, the defendant put in evidence a lease from himself, to John H. Fowler, a son of the plaintiff, by which the defendant let to the said John H., a store at the corner of Clinton and Madison streets, in the city of New York, for the term of two years, eight months and seventeen .days, from the 13th August, 1855, to end on the 1st day of May, 1858, at the yearly rent of $350, payable quarterly, with various covenants, which it is not material to state, and with 11 a provision that if default be made in the payment of rent, the lease and the relation of landlord and tenant shall, at the option of the lessor, wholly cease and determine, and the lessor may re-enter, &c.
    The defendant then proved, without contradiction, that John H. Fowler, the son, occupied the demised premises until about the 1st day of February, 1856, and then sold the store or place to his father, the plaintiff, who entered on or about the 4th of February, and occupied for about six weeks. At that time, about $102 were due to the defendant, from John H. Fowler, for rent accrued under the lease. The- defendant showed, by one of the witnesses, that after the plaintiff took possession, he “told the witness that he had made an agreement with the defendant, that if the defendant would allow him to remain, he would pay the back rent ■ due by his sonand, also, that the “plaintiff, five or six weeks ago, admitted that he had made the promise, and that it was not valid, because it was not a written one,” and again, “ the plaintiff admitted more than once, that he had made the verbal agreement to pay the back rent of Ms son, but that he was not liable as it was not in writing.”
    
      The referee allowed to the defendant, as a counterclaim, the rent accrued during the occupation by his son, and also the rent for the period of his own occupation.
    From the judgment entered upon the report of the referee, the plaintiff appealed.
    
      George Carpenter, for the plaintiff (appellant).
    1. The plaintiff’s promise not being in writing expressing the consideration, is void. (2 R. S., 135, § 2, sub. 2.)
    The original debtor was never discharged, but still remains liable. The plaintiff’s promise was therefore collateral and within the statute. (Brewster v. Silence, 4 Seld., 215; Watson v. Randall, 20 Wend., 201; Jackson v. Rayner, 12 Johns. R., 291; Kingsley v. Balcome, 4 Barb. S. C. R., 131.)
    2. The fact that the promise arises out of a new consideration, will not take the .case out of the statute. (Simpson v. Patten, 4 Johns. R., 422; Hall v. Farmer, 5 Denio, 485, 496; Stern v. Drinker, 2 E. D. Smith, 402; Barker v. Bucklin, 2 Denio, 45.)
    3. There was in fact no legal consideration for the promise.
    1. The consideration was too indefinite—“if defendant would allow plaintiff to remain.” How long? One year, or one day? (Comyn on Conts., 2; 1 Sid., 270; 1 Keb., 776.)
    2. The defendant was in lawful possession, and was entitled to hold till dispossessed by legal process.
    4. At most the consideration was' forbearance to take legal proceedings, and this consideration will not take a case out of the statute. (Authorities above cited, and Watson v. Randall, 20 Wend., 204.)
    
      Robert Benner, for the defendant (respondent).
    The facts were clearly proved, and the Court will not disturb the judgment. (Grah. & Wat. on N. T., vol. 2, p. 634; State v. Engle, 1 Zab. R., 347; Smith v. Kerr, 1 Barb., 155.)
    The exceptions to the special finding of the referee are unavailing. The referee is in place of a jury, and on questions of fact presumed to be right. (Bacon v. Parker, 12 Conn. R., 212; Kincaird v. Turner, 2 Gil., 618.)
    Again, this is a trifling action, and unimportant in its results, and for that reason alone a new trial should not be granted. 
      (Price v. Everitt, 1 East., 583, in notis; 1 Johns. Cas., 255; 5 Johns. R., 137; 10 Johns. R., 447; 2 Cow., 479.)
   By the Court—Hoffman, J.

By whatever rule the referee proceeded in his estimate, it is indisputable that he included the arrears due by the son with the value, at the rate of the lease, of the father’s occupation. It is clear that he did not mean to estimate the actual occupation as worth $145.14, as if there had been no arrears.

The answer alleges, by way of counterclaim, an indebtedness of the plaintiff to the defendant, in at least $150, for the use and occupation of the store, and as the tenant and lessee of the defendant. The referee follows this allegation in his finding.

He does not find that the value of the plaintiff’s occupation, for the period of his enjoyment, was $145.14; but he finds that the plaintiff owes the defendant that sum for the use and occupation of the store, and as tenant and lessee of his premises.

Now, the only evidence on which the finding rests as to the arrears, is this: an admission “ that he had agreed that if Holler would allow him to remain, he would pay the back rent due by his son.” The same witness, on cross-examination, says: “That the plaintiff admitted more than once that he had made a verbal agreement to pay the back rent of his son.”

. If this evidence were sufficient to charge the plaintiff, it would equally define the extent of his liability, and would exclude a responsibility for his own occupation besides, and make the sum to be paid for the privilege of remaining, only the back rent.

When the referee finds that $145.14 was due from the plaintiff, for use and occupation, and as tenant and lessee, he finds a fact, and fixes a price totally against the evidence. All the testimony to fix such value was the lease and nothing could be charged on this basis but for the period of say six weeks, at the rate of the rent therein fixed.

The case must be considered upon the evidence and finding thus: First, that the plaintiff verbally agreed that if the defendant would permit him to occupy the premises, (for a time not fixed but to accomplish the object of a sale,) he would pay the rent then due by his son: Next that he is chargeable, for his own actual use and .occupation, with another amount ascertained to be its value.

If there was no question in the cause arising out of the plaintiff’s occupation of the premises, the case would he very clear. The statute of frauds would undoubtedly apply. The debt of John H. Fowler for the rent, remained as absolutely due after the promise of the plaintiff to pay it as if no word respecting it had been uttered. It was a collateral undertaking for John H. Fowler’s debt and nothing else. (Eastwood v. Kenyon, 11 Adol. & Ellis, 438; Johnson v. Gilbert, 4 Hill, 178; Brown v. Curtiss, 2 Comst., 225; Mallory v. Gillett, 23 Barb., 610; Lord Lexington v. Clark and wife, 2 Vent., 223.)

But it is said, that the plaintiff engaged to pay for his own occupation, and also for the value of that of his son previously had; and that the good promise upon the valid consideration for himself extends to the whole contract and takes the case out of the statute.

So far from this being the result, there is much authority for holding, that if part of a contract is void as being within th<, statute of frauds, the whole is void, although an independent portion of it might have been valid, had it stood alone. (Van Alstyne v. Wimple, 5 Cow., 162; Lord Lexington v. Clark and wife, 2 Ventr., 223, there cited.)

In this last case, Brady was tenant at will of the plaintiff at a rent of £320. He died, and his widow while sole, (now wife of defendant Clark,) in consideration of the plaintiff’s allowing her to remain till Lady Day next, promised to pay £160 rent in arrear, and £260 more. ■ The £160 was paid before suit was brought, and it was held, that this part of the agreement being void, as it was to pay the debt of another, and not in writing, the residue was void also, although, had it .stood by itself, it might have been enforced.

Modern decisions, appear, however, to countenance a different rule, and to sustain the valid portion of a contract wherever it is separable from that part which is void, and to nullify only that which is illegal. (Wood v. Benson, 2 Cromp. & Jer., 94; Rand v. Mather, 11 Cush., 1.) The former is exactly in point. Part of a contract was void being to pay the debt of another,* and part good as the promiser’s own debt. It was supported pro tanto.

In Rand v. Mather, the subject was fully examined, and the general tendency of modern cases, to support such portions of instruments as are legal, and reject the residue was noticed. To the authorities cited may be added the important one of Curtis v. Leavitt. (15 N. Y. R., 124.)

The judgment must be reversed, and a new trial ordered, costs to abide the event.

Ordered accordingly.  