
    Harvey J. Ubert, Appellant, v. Adolph H. Schonger and Anthony Stenger, Respondents.
    Second Department,
    May 26, 1911.
    Pleading—amendment — action against one assuming chattel mortgage — Statute of Frauds — oral promise to pay mortgage, when independent agreement.
    Where a complaint alleges in substance that the defendants purchased a business including stock, on which plaintiff had a chattel mortgage, which they agreed to pay as part of the purchase price in consideration of the plaintiff’s promise to extend the time of payment, which he did; that, relying on the defendants’ agreement, the' plaintiff took no steps to enforce the mortgage and that the defendants refused to carry out the agreement and removed the property, the plaintiff should be allowed to amend so as to allege the defendants’ promise to pay, as he does not thereby set out a new cause of action.
    The agreement of the defendants to pay the mortgage was not a promise to answer for the debt of another, but being part of the consideration they were to pay for the business was a separate and independent agreement to pay the.plaintiff, and the promise may be shown by oral testimony.
    Appeal by the plaintiff, Harvey J. Ubert, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 25th day of Juné, 1910, upon the dismissal of the complaint by direction of the .court at the close of plaintiff’s case on a trial at the Kings County Trial Term.
    
      
      Charles P. Rogers [Oliver C. Carpenter with him on the brief], for the appellant.
    
      George M. S. Schulz, for the respondents.
   Rich, J.:,

It appears that in February, 1906, the defendants became the owners by purchase of the stock of goods and fixtures in the drug store at No. 14 Harrison avenue, Brooklyn, upon which the plaintiff had a lien under a chattel mortgage, upon which there was unpaid the sum of $1,000. Thére can be no doubt but that the defendants knew of the existence of this mortgage, and expected to pay it as part of the purchase price of the' business. After obtaining an extension of time for payment from the plaintiff, and leading him to feel secure in the belief that they would give him new and additional security, they waited until the mortgage ceased to be a lien upon the property and then repudiated their agreement. The complaint alleged, among other things, that “on or about the 9thday of February, 1906, the defendants herein purchased from Julius O. Ubert and Judson T. Smith, the drug business theretofore carried on by them at No. 14 Harrison Avenue, Borough of Brooklyn, New York City, including the property covered by • the chattel mortgage aforesaid, for the.sum of $4,200, payable as follows: $3,200 in cash and the balance of $1,000 by assuming the obligation of $1,000, payable to the plaintiff herein with interest, and- taking the said property subject to the aforesaid chattel' mortgage, on condition nevertheless, that the plaintiff herein, in consideration of said assumption of payment by defendants, would extend the time of the payment of said loan and mortgage and interest thereon to the 1st day of May, 1908, which said condition and consideration was accepted by this plaintiff, and the defendants entered into the possession of said business and property.” It failed to allege an express promise to pay by the defendants, and the evidence relating to such a promise was stricken out. The plaintiff moved to amend by alleging a promise to pay, and the exception to the ruling denying this motion presents reversible error. The proposed amendment did not set up a new cause of action and ought in the interest of justice to have been allowed; With a proper pleading the evidence relating to defendant’s promise would have been competent. It was not a promise to answer for the debt of another, but a separate and independent agreement to pay plaintiff the amount of his lien as a part of the consideration they were to pay for the business. The agreement was collateral to and independent of the extension agreement, and as was said by Judge Chase . in Lese v. Lamprecht (196 N. Y. 32): a Contracts are frequently made that are collateral to, but independent of, a written contract and they can he properly established by oral testimony. Evidence-of such, contracts is sometimes referred to as an exception to said general rule. It is more accurate to say that collateral and independent contracts can be shown by oral testimony because it was not the intention of the parties thereto to include such contracts in the writing. Collateral contracts are thus frequently established by oral testimony.”

The judgment must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Hirschberg, Burr and Woodward, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  