
    Bayles et al. v. Wallace.
    
      (Supreme Court, General Term, Second Department.
    
    May 12, 1890.)
    Statute of Frauds—Original Promise.
    . Where plaintiffs refused to furnish any more, lumber to a contractor for use in the erection of a house for defendant unless defendant became responsible, defendant’s promise to pay for lumber thereafter delivered was an original undertaking, and therefore not void, under the statute of frauds, because not in writing.
    Appeal from Suffolk county court.
    Action by David T. Bayles and others against Howard Wallace. There was judgment for plaintiffs. Defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Thomas J. Ritch, Jr., for appellant. Thomas 8. Mount, for respondent.
   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 plaintiff, 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 The contractor for the erection of the building was Samuel H. Brewster, and the agreement to furnish the lumber Was originally made with him; but the claim of the plaintiff, upon which this action is based, is that, after he had delivered some lumber under his agreement with this Brewster,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 lumber 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 and order denying the motion for a new trial should be affirmed, with costs. All concur.  