
    Leo Metzger, Plaintiff, v. William D. Edson, Jr., et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1898.)
    Statute of frauds — Original promises — Consideration — The debt may still subsist against the original debtor.
    A complaint, of the assignee of one Heismeyer against the firm of Edson Brothers, alleged that, in consideration of the transfer of the book accounts and other assets of the firm of Heismeyer & Edson and of said Heismeyer joining in such transfer, the firm of Edson Brothers agreed with Heismeyer to release his firm from a debt to them of 82,348.93, which that firm was then unable to pay, and that Edson Brothers also agreed to pay him 8647.28 due him from them; and for this latter sum the assignee sued. Edson Brothers answered that the promise was not in writing and was void under the Statute of Frauds.
    Held that, by the acceptance of the transfer in consideration of their promise to pay Heismeyer, Edson Brothers had made the debt their own and were liable as upon an original promise.
    That the contention that there could be no recovery, since Heismeyer was a member of the firm of Heismeyer & Edson and, therefore, individually liable, if it was unable to pay Edson Brothers, there being in that event no consideration for the promise, could not be maintained, as the allegation of the complaint was merely that Heismeyer & Edson were “ then ” unable to pay and that the court would presume that, by the transfer, money to pay the debts of Heismeyer & Edson could be realized.
    That it was immaterial that the debt still subsisted against the original debtor.
    Demtjbbeb to defense, setting up the Statute of Frauds.
    Henry Brill, for plaintiff.
    E. W. Beebe and Hugo S. Mack, for defendants.
   Daly, J.

As set forth in the complaint, it appears that the firm of Edson Brothers, of Philadelphia, in consideration of the transfer of the hook accounts and other assets of the firm of Heismeyer & Edson, of Hew York, and of Heismeyer joining in such transfer, agreed with Heismeyer to release an indebtedness of $2,343.93, owing to Edson Brothers by said last-named firm, and which the latter was then unable to pay, and also agreed to pay Heismeyer the sum of $647.28, owing to him by his said firm. This action is brought by the assignee of Heismeyer to recover the last-named sum. The defendants, composing the firm of Edson Brothers, of Philadelphia, the alleged promisors, for a separate defense, aver that the alleged promise was not in writing, and was void under the Statute of Frauds. Plaintiff demurs to this defense on the ground that it is insufficient in law. The facts stated in the complaint show an original promise, not a collateral promise within the Statute of Frauds, and required to be in writing. This is the case of the transfer of property by a debtor to a third person in consideration of the latter’s agreement to pay the debt and a promise to the creditor, by the transferee, to make such payment. The transferee thereby makes the debt his own and assumes an independent duty of payment, irrespective of the liability of the original debtor, and becomes liable for the discharge of the debt. First Nat. Bank v. Chalmers, 144 N. Y. 432. It is argued, however» that the alleged creditor, being a member of the firm which made the transfer, and that firm being indebted to the transferees, are unable to pay them, no consideration is shown for the promise of the latter; it not being alleged that the assets transferred were more than sufficient to discharge the debt due to the transferees, and the inference from the facts being that the transferors were insolvent. It does not follow from the averment in the complaint, that the Hew York firm was unable to pay the Philadelphia firm the amount due the latter, that the property transferred was not ample to satisfy both the debt owing to the Philadelphia firm, and to the partner Heismeyer. The allegation is that the firm could not pay the debt then,” i. e., at the time of the transfer, and it might reasonably be inferred that, by the assignment, money to discharge the debts could be realized. An inference in favor of the adequacy of the consideration may reasonably be drawn from the transferees’ unconditional promise to discharge both debts. It does not appear that there were other debts to be paid out of the assets. The promise of the transferees being absolute and unconditional, it is not necessary to show that the assets were sufficient to discharge the debts. The case, therefore, is not within the rule in Belknap v. Bender, 75 N. Y. 446, where the agreement was simply to pay out of the proceeds when realized. Bank v. Chalmers, above. There is no force in the contention that the plaintiff is bound to show that his assignor agreed to release the original debtor. The promisors having agreed to pay in consideration of the transfer of property for their own use and benefit, they become primarily liable irrespective of the liability of the principal debtor. The fact that the debt may still subsist against the original debtor is no objection to a recovery. Clark v. Howard, 150 N. Y. 232-9. The relations between the promisee Heismeyer and his own firm making the transfer, so far as they might suggest the question whether he could collect the indebtedness from his firm, is immaterial as between the defendants and Heismeyer, since under the authority cited, by their unconditional promise to him they “ assumed an independent duty of payment irrespective of the liability of the principal debtor. * * * In such a case the debt becomes that of the new party promising; his promise is not to pay the debt of another, but his own.” Bank v. Chalmers, above. Judgment for plaintiff on demurrer to separate defense, with costs.

Judgment for plaintiff, with costs.  