
    The American Wire & Steel Bed Co., Appellant, v. Louisa Schultz, Respondent.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Statute of Frauds — When a promise is original.
    A verbal promise made by a mother, whose son had become a defaulter to his employer, to pay the employer the amount of the defalcation if he would release the son from all claims by reason of it, becomes, after the employer has executed such release, an original promise by which, upon a good consideration, the mother makes the debt her own.
    Appeal by the plaintiff from an order of the City Court of the city of Hew York, setting aside a verdict of a jury rendered in favor of the plaintiff and ordering a new trial
    
      Sanders & Eeltenstein (Moses Eeltenstein, of counsel), for appellant.
    George Hahn, for respondent.
   Ereedmah, P. J.

The defendant’s son had become a defaulter in the course of his employment by the plaintiff. Upon being notified of the fact, the defendant entered into a certain agreement with the plaintiff. The' said agreement, as it must be deemed to have been established by the jury, was that in consideration that the plaintiff should not disclose to the defendant’s husband the fact of her son’s dishonor, and in consideration that the plaintiff should retain said son in its employ, and in further consideration that the plaintiff would release said son from, all claims against him by reason of the defalcation, the defendant would pay the amount of the defalcation. The plaintiff performed its part of the contract. The defendant, after making some payments on account, refused to pay any more. The jury found for the plaintiff for the balance remaining due. The court below set aside the verdict for the following reasons, viz.: “ In order to hold defendant upon her promise to pay the debt of her son, there must be a consideration moving to and beneficial to her (Ackley v. Parmenter, 98 N. Y. 425; White v. Rintoul, 108 id. 231), and the evidence in this case fails to supply that requirement of the law.”

There was error in thus applying the provisions of the Statute of Frauds to the case as determined by the jury, and the authorities cited are not decisive. In neither of these two cases cited was there a request on the part of the promisor to release the original claim, followed up by' an actual release and extinguishment thereof. In both of them the defendant stood in the relationship of surety for the performance by the original debtor of the obligation of the latter to the creditor. They would be applicable if the fact were established that defendant’s obligation was one of surety and contingent upon something which the original debtor was to do. But that element does not exist here. On the contrary the case at bar comes directly within the exception noted in the two cases cited. The defendant asked for no extension of time within which her son was to pay, but for his actual release from his debt and the substitution of her own obligation. The release was granted and his debt extinguished upon her assumption of the indebtedness and she then and there paid fifty dollars on account of it. This was not a collateral, but an original undertaking on her part by which she made his debt her own. That such a case does not fall within the Statute of Frauds was held in Berg v. Spitz, 84 N. Y. Supp. 532; Meriden Britannia Co. v. Zingen, 48 N. Y. 247; Mallory v. Gillett, 21 id. 412; Brown v. Weber, 38 id. 187. Under these authorities there was a sufficient consideration for the defendant’s promise. Moreover, if it were necessary to show that, under the circumstances disclosed by the evidence, the court below mistakenly assumed that the consideration flowing from the part of the agreement by which the plaintiff agreed not to disclose the son’s defalcation to his father was of a mere sentimental character, it would not be difficult to do so.

The order appealed from must be reversed, with costs and disbursements.

Truax and Scott, JJ., concur.

Order reversed, with costs and disbursements.  