
    Dave Lippmann, Appellant, v. Maurice B. Blumenthal, Respondent.
    Supreme Court, Appellate Term,
    October, 1899.)
    Statute of Frauds — Collateral oral promise of attorney that he will pay any judgment his adversay may recover against his client.
    Where a judgment by default has been taken against a defendant, without negligence upon the part of his attorney, and the latter, as a condition of being allowed to open the default, orally promises the plaintiff to pay any judgment he may recover in the action provided the plaintiff will waive costs and the giving of an undertaking on the default, the oral promise of the attorney is not enforcible, as it is a promise to pay the debt to another. It cannot be deemed original in its nature as it was not beneficial to the attorney, nor was he, when he made it, under any present duty to pay.
    Appeal by the plaintiff from a judgment of the Municipal Court, seventh district, borough of Manhattan, rendered in favor of the defendant, dismissing the complaint.
    Daniel F. Eiley, for appellant.
    Charles 0. Peters, for respondent.
   MacLeatt, J.

There may be taken as facts in this case that the plaintiff recovered judgment upon an inquest in the City Court in an action against one Satler, whose attorney was Mr. Blumenthal, above named as defendant; that a motion was subsequently made to open and vacate that default, and that after several conversations as to terms, plaintiff, by his attorney, agreed to waive costs and any undertaking upon the promise of Mr. Blumenthal, the defendant herein, to pay any judgment which might subsequently be obtained in that action. Some time after-wards the plaintiff recovered judgment against Satler, also by default, and Satler, proving insolvency, this action was brought to recover the amount from the defendant. At the close of the plaintiff’s case, the defendant moved to dismiss on the ground “ that the alleged liability of defendant here is within the statute of frauds, the agreement not being in writing, and the plaintiff cannot recover.” That motion was granted, and judgment accordingly. The plaintiff-appellant, upon this appeal, contends that the Statute of Frauds does not apply, because the promise of the defendant was not a collateral, but a new and original promise resting upon a consideration originating in an independent dealing between the parties herein; that the consideration supporting this new agreement was the waiving of costs and an undertaking at the time when the first judgment, entered by default, was vacated and set aside.

The doctrine which the plaintiff invokes is not law, although it was long held to be so in this State upon the venerable authority of Chief Justice Kent from the definition of an original promise given by him in the once familiar case of Leonard v. Vredenburgh, 8 Johns. 29, as one where “ the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties.” This doctrine was narrowed in Mallory v. Gillett, 21 N. Y. 412, by a bare majority of the judges, upon a very elaborate review of the case by Comstock, Oh. J., so as to require the new promise to be founded upon a consideration moving to the promisor. Later on, in Brown v. Weber, 38 N. Y. 187, all the judges concurred in the opinion by Q-rover, J., that the test to be applied in every case is whether the party sought to be charged is the principal debtor primarily liable, or whether he is only liable in case of the default of a third person, or in other words, whether or not the party promising is undertaking for the performance of his own obligation. Later still, in Ackley v. Parmenter, 98 N. Y. 425, Rapallo, J., stating, as was said in White v. Rintoul, 108 id. 222, “with precision and accuracy the doctrine of the court,” said “ Consequently, at the time of the alleged promise he was under no present duty to pay and the promise, though founded on a good consideration (viz., the adjournment of the sale), was nevertheless an undertaking to pay the debt of another, and was void under the statute of frauds.”

To determine that the promise of the defendant herein was not a collateral, but a new and absolute promise resting upon a new consideration, it would be necessary to determine that the defendant’s liability for costs in the action of Lippmann v. Satler was a present liability to pay in consequence of the attorney’s negligence. The waiver of costs was, certainly, detrimental to the present plaintiff and beneficial to the debtor Satler, but so far as appears, it was of no advantage to Sailer’s attorney, now the defendant herein. So, too, the waiving of the undertaking doubtless was detrimental to the promisee and beneficial to the debtor Satler, but there was no evidence to show that it was -of benefit to the promisor, much less does it appear that at the time of making the promise the defendant was under a present duty to pay what he had promised. Apparently, also, the plaintiff did not consider Mr. Blumenthal, now the party sought to be charged as the principal debtor, who had undertaken for the performance of his own obligation. He treated him as only liable in case of the default of the debtor Satler. When he had recovered judgment a second time, he issued execution and upon the return of that unsatisfied, had Satler examined in proceedings supplementary to execution, and only after his remedies against Satler had been exhausted did he turn by the present action to the present defendant.

The judgment should be affirmed, with costs.

Freedman, P. J., and Leventritt, J., concur.

Judgment affirmed, with costs.  