
    John A. Snell et al., Resp’ts, v. James Rogers et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 8, 1893.)
    
    ■Contract—Statute op frauds.
    Defendants’ firm, as contractors for building a portion of a railroad, entered into a written contract with one Lally to do said work. Plaintiff,
    . with his teams and men, worked for Lally for some time by the day, and agreed with Daily’s agent to make a written contract for grading and excavating a place known as Cooney Creek, at an agreed price per cubic yard. The contract was not signed by the parties, but plaintiff went on and completed the work at Cooney Creek. While the plaintiff was at work at that place one of the defendants told him to go on and complete the-work and defendants would pay for the labor. Held, that this constituted an original undertaking by the defendant to pay plaintiff for the work thereafter .performed, and was not within the statute of frauds.
    Appeal from a judgment entered in favor of the plaintiffs upon :the report of a referee.
    
      Kellas & Munsill (John P. Kellas, of counsel), for app’lts; Badger & Ide (John P. Badger, of counsel), for resp'ts.
   Mayham, P. J.

The complaint in this action alleges that the defendants are indebted to them in the sum therein specified for work, labor and service done and performed by plaintiffs, their agent, servant and teams for the defendants and at their request.

The answer is a denial of the principal allegation in the complaint ; an allegation that the work was performed for a person other than the defendants, and that any alleged agreement by the defendants to pay plaintiffs for the same, was a parol collateral promise to answer for the debt of another and void by the statute of frauds.

The case shows that the defendants as partners were contractors for the building of that portion of the St. Lawrence & Adiron■daclc. railroad as lies between the village of Malone and the northerly line of Franklin county.

That as such contractors they entered into a contract with one Martin T. Lally to perform the work required by their contract on a portion of the line of said railroad.

That contract was in writing specifying the duties and obligations of the respective parties. The plaintiff with his hands and teams worked for Lally, for some time by the day, on this contract, and about, the 26th of August, 1891, contracted with Lally through one Livingston, his agent, who was empowered hy Lally make such contract for grading and excavating at a place known as Cooney creek, at an agreed price per cubic yard, with an understanding that the agreement was to be reduced to writing and presented for execution at a designated day in the future, and in the meantime plaintiff with his hands and teams were to, and did, commence excavating and grading at that point.

A contract was afterwards prepared and presented for signature, but was not executed for the reason assigned by the plaintiff that it was not in accordance with the parol understanding between Lally through his agent, and the plaintiff Livingston, the agent of Lally, swears that plaintiff’s son said when the contract was presented that he would continue the work by the day until the contract was perfected and signed and the referee finds that Livingston assented to that proposition. That contract was not signed by the parries, but the plaintiff went on and completed the work in the Cooney Creek cut' and fill.

While the plaintiff was at work in that cut a conversation occurred between the plaintiff and the defendant, Farquher, at which, as the plaintiff testifies, the defendant, Farquher, told plaintiff to go on and complete this work and they, the defendants, would pay them for their labor. This Farquher denies, but the referee finds that there was such an agreement. Whether there was or was not, such an agreement is purely a question of fact, and while it is parol this court from the printed record might have reached a different conclusion if it were an original question, we do not feel authorized on this appeal to revise the findings of fact of the referee, as there is sufficient evidence to sustain this finding, especially as the referee enjoyed the advantage of seeing the witnesses and hearing their evidence as given upon the witness stand; an advantage which the appellate court does not possess, and one which is always important in determining disputed questions of fact

Assuming, therefore, as we must, that the defendants made this .agreement, and that the work performed by the plaintiffs after it was made was done under it, and in reliance upon the defendants’ promise to pay for it, the contention of the defendants that it was a parol collateral agreement by the defendant to pay the debt of Lally cannot be sustained, but it became an original undertaking by the defendants to pay the plaintiffs for the work thereafter performed and is not, therefore, within the statute of frauds, especially as the contract between Lally and the plaintiffs was never signed, or executed, and the referee finds upon sufficient evidence that until the contract was signed the plaintiffs’ work was by the day ; and as the work to be performed was for the benefit of the"defendants on their job, the agreement to pay for it by the defendants was supported by a sufficient consideration. Bayles v. Wallace, 32 St. Rep., 3-41-2; Gallagher v. Nichols, 60 N. Y., 445; Quintard v. De Wolf, 34 Barb., 97. But it is insisted that the contract to cut and fell at Cooney Creek by the yard wits a binding agreement between Lally and the plaintiff, and that the alleged change to a contract by the day with Livingston was unauthorized and, therefore, inoperative to bind the defendant.

But the plaintiff at the time of the alleged agreement with Farquher was at work on this job by the day, as the written contract had not been signed, and if, as we have seen, that was a valid agreement, we do not see how the question of Livingston’s authority can affect the question of the defendants’ liability to ¡Day for the work done under it.

We have examined the objections and exceptions taken by the appellant to the receipt and rejection of evidence, and find no-error affecting the result in this case, and as the question upon which the case turns are largely questions of fact and the findings and conclusions -supported by the evidence, the judgment, must, on this appeal, be upheld.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.  