
    DUFFY against WUNSCH.
    
      Court of Appeals;
    
    
      March Term, 1870.
    Promise to Pay on Discontinuance.—Statute oe Frauds.
    A promise to pay the debt of another, in consideration that the creditor discontinue a pending action brought by him against the debtor, but without any other consideration, and without proof that the creditor paid the costs of the action on discontinuing,—is a promise to answer for the debt of another, within the statute of frauds, and void if not in writing.
    The case of Prentice v. Wilkinson, 5 Abb. Pr. K S., 49, overruled or limited.
    
    Appeal from a judgment.
    This action was brought by Charles Duffy, plaintiff and respondent, against William Wunsch, defendant and appellant; and came before the court of appeals on an. appeal from the general term of the court of common pleas.
    The action was originally "brought in a district court, where the plaintiff had judgment, which was affirmed "by the common pleas,_witliout argument, upon the authority of Prentice v. Wilkinson, 5 Abb. Pr. N. S., 49. There having "been a difference of opinion in the latter case, leave was given to appeal to the court of appeals, where it was submitted upon printed briefs.
    The~facts found below were as follows : John Roller, plaintiff’s assignor, sold bread to Louis Wunsch, defendant’s brother, to the amount of ninety dollars. An action was commenced by Duffy, the plaintiff, as assignee, against Louis Wunsch, when the defendant, William Wunsch, agreed that if Duffy, the plaintiff, could be induced to stop his suit, he, the defendant, would pay the balance then due. He then paid part on account, leaving forty dollars due. On this agreement of the defendant, that suit against Louis Wunsch was discontinued ; and the defendant subsequently failing to pay the balance due, this action was commenced and recovery had against him below.
    
      G. Storms Carpenter, for appellant;
    Cited Mallory v. Gillett, 21 N. Y., 412; Pfeiffer v. Adler, 37 N. Y., 164; Brown v. Weber, 38 N. Y., 187; Leonard v. Vredenburgh, 8 Johns., 29; Nelson v. Boynton, 3 Metc., 396.
    
      David McAdam, for respondent;
    Cited Prentice v. Wilkinson, 5 Abb. Pr. N. S., 49; Palmer v. North, 35 Barb., 282; Seaman v. Seaman, 12 Wend., 381; Hilliard v. Austen, 17 Barb., 141; Smith v. Weed, 20 Wend., 184; Elting v. Vanderlyn, 4 Johns., 237.
    
      
      Mr. Throop, in his treatise on Yerbal Agreements, in which he has with great research collected the cases and elucidated the principles which guide in the application of the Statute of Frauds, explains the case of Prentice v. Wilkinson as rightly'decided, not on the grounds discussed in the opinion of the court, but on the ground that the action being by a wife for divorce, no one was bound for her costs; and therefore the promise was an original undertaking, not a promise to answer for the debt of another.
      In this view the result of that case does not conflict with that in our text. Throop (p. 203) states the distinction substantially as follows:
      Whenever the promisor undertakes to respond for any debt or damages for which it is conceded that the third person is also liable, the promise is within the statute, though it may be for the payment of a' definite sum, while the debt or damages for which the third person is liable are indefinite in amount, or even grow out of a wrong committed by him. The promises to pay on discontinuance, which are not within the statute, are those where it clearly appears that the third person ‘ never was liable to the particular debt,’ although the promise related to and is closely connected with some debt- or demand which the promisee is or claims to be entitled to enforce aaainst him.
    
   By the Court.—Ingalls, J.

This appeal presents but one question. Whether the verbal promise oftlie defendant to pay the debt which his brother had coni tracted for his own benefit, and on his own account, and from which the defendant derived no advantage, was void by the statute of frauds.

The Revised Statutes (2 R. S., 135, § 2 [5 ed., vol. 3, p. 221]) provide as follows: “In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, expressing the consideration be in writing, and subscribed by the party to be charged therewith.

“ 1st. Every agreement that by its terms is not to be performed within one year from the making thereof.

“2nd. Every special promise to answer for the debt, default, or miscarriage of another person.”

The above section was amended in'|1863, so that .the consideration for the agreement need not be expressed therein. It is not pretended that there was any note or memorandum of the defendant’s promise, or that the defendant received any consideration, or derived any benefit on account of his promise to paythe debt.

Nor that the plaintiff parted with any thing of value," or incurred any liability or obligation in consequence of such promise, unless it be_ inferred that he became liable to pay the. costs of the action, which was commenced against the brother of the defendant.

There is no proof that he paid the costs of such action. It is very clear that the debt remained uncanceled against Louis Wunsch, and could be collected of him if responsible, so the defendant, at most, became surety for his brother. We are clearly of opinion that the agreement of the defendant was void, not being in writing. It was not an agreement to pay his own debt, but that of his brother, and without any consideration whatever running to the defendant. If it be assumed that the discontinuance of the cause against Louis Wunsch furnished an adequate consideration for the defendant’s promise, the difficulty still remains, because the agreement was not in writing. The case at bar is not, in principle, distinguishable from Mallory v. Gillett, 21 N. Y., 413; Pfeiffer v. Adler, 37 N. Y., 164; Brown v. Weber, 38 N. Y., 187.

The judgment should be reversed with costs.  