
    (70 Hun, 462.)
    SNELL et al. v. ROGERS et al.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    Statute of Frauds—Original Undertaking.
    Where one working by the day for a subcontractor continues the work-on the agreement of the contractor to pay him, this is an original undertaking on a sufficient consideration, which need not be in writing.
    Appeal from judgment on report of referee.
    Action by John A. Snell, Alanson Snell, and Lewis D. Snell, partners under the firm name and style of John A. Snell & Sons, against James Rogers, E. F. Fauquier, and George A. Taylor, partners under the firm name and style of Rogers, Fauquier & Taylor. Judgment for plaintiffs. Defendants appeal.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Kellas & Munsill, (John P. Kellas, of counsél,) for appellants.
    Badger & ide, (John P. Badger, of counsel,) for respondents.
   MAYHAM, P. J.

The complaint in this action alleges that the defendants are indebted in the sum therein specified, for work, labor, and service done and performed by plaintiffs, their agent, servant, and teams, for the defendants, and at their request. The answer is a denial of the principal allegation in the complaint; an allegation that the work was performed for a person other than the defendants, and that any alleged agreement by the defendants to pay plaintiffs for the same was a paroi collateral promise to answer for the debt of another, and void by the statutes of fraud. The case shows that the defendants, as partners, were contractors-for the building of that portion of the St. Lawrence & Adirondack Railroad as lies between the village of Malone and the northerly line of Franklin county. That, as such contractors, they entered into a contract with one Martin T. Lally to perform the work required by their contract on a portion of the line of such railroad.. That contract was in writing, specifying the duties and obligations of the respective parties. The plaintiff, with his hands and teams, worked for Lally, for some time, by the day, on this contract, and about the 26th of August, 1891, contracted with Lally, through one-Livingston, his agent, who was empowered by Lally to make such contract, for grading and excavating at a place known as “Coony Creek,” at an agreed price per cubic yard, with an understanding-that the agreement was to be reduced to writing, and presented for execution at a designated day in the future, and in the mean time plaintiff, with his hands and teams, were to, and did, commence excavating and grading at that point. A contract was afterwards prepared and presented for signature, but was not executed, for the reason assigned by the plaintiff, that it was not in accordance with the paroi understanding between Lally, through his agent, and the plaintiff. Livingston, the . agent of Lally, swears that plaintiff’s son said, when the contract was presented, that' he would continue the work by the day until the contract was perfected and signed, and the referee finds that Livingston assented to that proposition. That contract was not signed by the parties, but the-plaintiff went on and completed the work in the Coony creek cut and fill. While the plaintiff was at work in that cut, a conversation occurred between the plaintiff and the defendant Fauquier at which, as the plaintiff testifies, the defendant Fauquier told plaintiff to go on and complete this work, and they (the defendants)would pay them for their labor. This Fauquier denies, but the referee finds that there was such an agreement. Whether there was or was not such an agreement is purely a question of fact, and while it is possible that this court, from the printed record, might have reached a different conclusion if it were an original question, we do not feel authorized on this appeal to revise the findings of fact of the referee, as there is sufficient evidence to sustain this finding, especially as the referee enjoyed, the advantage of seeing the witnesses and hearing their evidence as given upon the witness stand, an advantage which the appellate court does not possess, and one which is always important in determining disputed questions of fact.

Assuming, therefore, as we must, that the defendants made this agreement, and that the work performed by the plaintiff'- after it was made was done under it, and in reliance upon the defendants’ promise to pay for it, the contention of the defendants that it was a paroi collateral agreement by the defendants to pay the debt of Lally cannot be sustained; but it became an original undertaking by the defendants to pay the plaintiff for the work thereafter performed, and is not therefore within the statute of frauds, especially-as the contract between Lally and the plaintiff was never signed or executed,- and the referee finds, upon sufficient evidence, that, until the contract was signed, the plaintiff’s work was by the day; and, as the work to be performed was for the benefit of the defendants on their job, the agreement to pay for it by the defendants was supported by a sufficient consideration. Bayles v. Wallace, (Sup.) 10 N. Y. Supp. 191; Gallagher v. Nichols, 60 N. Y. 445; Quintard v. De Wolf, 34 Barb. 97.

But it is insisted that the contract to cut and fill at Coony creek by the yard was a binding agreement between Lally and .the plaintiff, ' and that the alleged change to a contract by the day with Livingston was unauthorized, and therefore inoperative to bind the defendants. But the plaintiff, at the time of the alleged agreement with Farquher, was at work on this job by the day, as the written ■contract had not been signed; and if, as we have seen, that was a valid agreement, we do not see how the question of Livingston’s authority can affect the question of the defendants’ liability to paj for the work done under it.

We have examined the objections and exceptions taken by the appellants to the receipt and rejection of evidence, and find no error affecting the result in this case; and, as the questions upon which the case turns are largely questions of fact, and the findings and, conclusions are supported by the evidence, the judgment must on this appeal be upheld.

Judgment affirmed, with costs. All concur.  