
    William B. Millard and Others, Appellants, Impleaded with Others, v. Edward P. Steers, Respondent, Impleaded with Abraham Steers and Nelson H. Salisbury, Trustee and as Assignee for the Benefit of Creditors of Abraham Steers.
    
      Statute of Vra/ads— what consideration is necessary to sustain a parol promise to assist a debtor who compromises some of his debts on the faith of it.
    
    
      Semble, that a parol contract to answer for the debt, default or miscarriage of another may be valid when the promise is made upon a new consideration beneficial to the promisor, although the primary debt remains unpaid.
    A parol promise made by the brother of an insolvent debtor, who called a meeting of his creditors, at which a compromise agreement was signed by some of them, that he would assist the debtor in an amount not exceeding §100,000, as his necessities might require, is not a promise beneficial to the promisor, in the absence of proof that the promisor had an interest in the estate of his brother, or that he received a benefit from the compromise agreement made, or because the debtor was released from the immediate payment of a portion of his debts.
    The mere fact that the promisor was an officer of a bank which was a creditor of the insolvent brother, and that, after the making of the compromise agreement, the debt of the insolvent to the bank was paid, furnishes no proof of a consideration beneficial to the promisor which will support his promise.
    Appeal by the plaintiffs, William B. Millard and others, from a judgment of the Supreme Court in favor of the defendant Edward P. Steers, entered in the office of the clerk of the county of Kew York on the 31st day of October, 1895, upon the decision of the court rendered after a trial at the Kew York Special Term dismissing the plaintiff’s complaint.
    
      Charles T. Terry and Charles R. Westbrook, for the appellants.
    
      Thomas Allison, for the respondent.
   Rumsey, J.:

Abraham Steers, the brother of Edward P. Steers, found himself unable to pay his debts, and called a meeting of his creditors for the purpose of negotiating a compromise with them. At that meeting a large number, but not all, of the creditors made their appearance and a compromise was proposed by Abraham Steer's and accepted by those of the creditors who were present, and afterwards by others of the creditors, but never by all of thenu Before that meeting Edward P. Steers, who was not present at it, had stated that he was willing to assist his brother to a certain extent, and at the time of the meeting it was announced that, if the compromise was ar'ranged, Edward P. Steers would assist his brother in an amount riot exceeding .$100,000, as his necessities might require it. It is fair to infer from the evidence that those of the creditors who signed the compromise agreement did so relying upon this promise of Edward Steers. This action is brought by some of the creditors in behalf of all the persons interested, to enforce a specific performance on the part of Edward P. Steers of this agreement. At the Special Term the complaint was dismissed, and from the judgment entered upon that decision this appeal is taken.

Passing the point that the fair construction of this contract is to-pay a certain sum of money, and, therefore, it could only be enforced, if valid, by an action at law, it is quite clear that the contract under the proof was not valid, and the plaintiffs had no standing in court to maintain an action on it in any form. . The contract was made for the benefit of the creditors of Abraham Steers, and was to assist, him in paying the money agreed to be paid by the compromise-according to his necessities, in a sum not exceeding $100,000. The liability of Abraham Steers constituted the primary debt, and this-promise of Edward Steers was clearly a promise to answer for that debt.. It- was, therefore, within that provision of the Statute of Frauds, that all contracts to answer for the debt, default or miscarriage of' another are void unless in writing and signed by the party sought to be charged. No action could be maintained upon it, therefore, unless it-was .brought within one of the exceptions which have been engrafted upon. that statute by the decisions of the courts. The appellant-claims that he is within the principle that such a contract, when made-for a new consideration of benefit to the promisor, is valid, although not in writing, even if the primary debt remains subsisting. (White v. Rintoul, 108 N. Y. 222; Merserau Co. v. Washburn, 6 App. Div. 404.) But the difficulty with this case is that there was no new consideration of benefit passing to the promisor. There is no claim that Edward P. Steers had any interest whatever in the estate of his brother, or received any benefit from the making of the compromise agreement, or because his brother was released from the immediate payment of a portion of his debts.

Indeed, no claim of that kind is made, but it is said that Edward Steers was an officer of a certain bank which was a large creditor of Abraham Steers, and that, after the making of the compromise agreement, the debt from Abraham Steers to that bank was paid. There is no proof that this debt was paid either as a condition of, or because of the making of, the compromise agreement, and if it were the fact that the corporation in which Edward Steers was interested was able to obtain payment of its debt because of the compromise agreement which was made in reliance upon Edward Steers’ promise, that does not furnish a consideration of benefit to Edward Steers, in the legal sense, which would charge him upon a parol contract otherwise void. Legally speaking, Edward Steers had no interest in the payment of his brother’s debt to this bank, and it could not be of any benefit to him whatever; and, therefore, even if it be a fact that it was a benefit to the bank to have this compromise agreement made, it does not raise an inference that some other person received such a benefit as would afford a consideration for his promise, in the absence of proof that the promisor insisted upon the benefit to the bank as a consideration for his agreement.

For these reasons, without considering any other points made upon the argument, this judgment must be affirmed, with costs.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred. ' '

Judgment affirmed, with costs.  