
    Paul W. Lyon et al., as Executors, Etc., Appellants, v. John Clochessy, Respondent.
    (Supreme Court, Appellate Term,
    February, 1904.)
    Statute of Frauds — When a promise of a third person is one to pay his own debt and need not be in writing — Adoption of promise by creditor.
    Where a debtor transfers property to a third person in consideration of his promise to pay the debt to the creditor the promise need not be in writing to be actionable by the creditor as the third person has made the debt Ms own and he becomes liable to pay it irrespective of the liability of the original debtor.
    The creditor may adopt and sue upon the promise when it becomes known to Mm and his demand of the third person that he pay the debt is an adoption.
    
      Quiere, whether the Statute of Frauds is available as a defense where it has not been pleaded.
    Appeal by the plaintiffs from a judgment rendered in the Municipal Court of the city of New York, first district, borough of Manhattan, in favor of the defendant.
    Phillip Phillips, for appellants.
    Joseph Parker, Jr., for respondent.
   Ebeedman, P. J.

TJpon assuming the duties of their office as executors, the plaintiffs came into possession of a book bindery establishment, which they sold to the firm of Senior & Deibner, taking as part of the purchase thereof two promissory notes for $75 and $200, respectively. Subsequently Senior & Deibner sold the business to the defendant, and it is claimed by the plaintiffs and by Senior & Deibner, that the defendant assumed and agreed to pay to the plaintiffs as part of the consideration for such purchase made of Senior & Deibner the two notes aforesaid. The defendant admitted the promise by him to pay the $75 note, but denied that he assumed or promised payment of the $200 note. The trial court decided in favor of the defendant.

The testimony in support of the plaintiffs’ theory largely preponderates over that of the defendant; and as the defendant’s motion for a nonsuit made upon the trial, and the only point urged in his brief, is that the plaintiffs are not entitled to recover as a matter of law, it is reasonable to presume that the court below decided the case in favor of the defendant upon the legal position taken by him. Briefly, the claim of the defendant is that if the defendant did assume the payment of the note and did promise and agree to pay the same to plaintiffs as a part of the consideration for the purchase price of the property from Senior & Deibner, such promise, not having been made in writing, falls within the provisions of the statute (Birdseye [2d ed.], p. 1342), which'declares that “ Every special promise to answer for the debt, default or miscarriage of another person ” must be in writing to be enforceable.

In this contention the defendant is in error. His promise, if made, was not to pay the debt of a third person so as to fall within the inhibition of the statute aforesaid, but is a promise to pay his own debt.

Where a debtor transfers property to a third person, in consideration of an agreement of the latter to assume and pay the debts, and he thereupon promises the creditor to pay, he makes the debt his own, and so assumes an independent duty of payment, irrespective of the liability of the principal debtor, and becomes similarly liable for the discharge of the debt..

“ Such an agreement, therefore, is not simply a promise to answer for the debt or default of another; and so, is not within the provision of the Statute of Frauds.” First Nat. Bank v. Chalmers, 144 N. Y. 432.

Where a debtor transfers property to a third person in consideration of his promise to pay the debt to the creditor, the latter may accept and adopt the promise when it becomes known to him and maintain an action upon it. When the promise in such cases is the consideration or condition upon which the third party has received the debtor’s property, he thereby makes the debt his own, and assumes an independent duty of payment, irrespective of the liability of the principal or original debtor. First Nat. Bank v. Chalmers, 144 N. Y. 432; White v. Rintoul, 108 id. 222; Townsend v. Rackham, 143 id. 516. It appears that the plaintiff, sometime before the commencement of the action, demanded payment of the debt from the defendant, so there can be no question of the acceptance or adoption of the promise. Clark v. Howard, 150 N. Y. 232.

One who purchases a business agreeing to assume as part of the consideration the debts of the sellers, becomes not a surety or guarantor as to such debts, but principal.” Berbling v. Glaser, 3 Misc. Rep. 624; 23 N. Y. Supp. 118; Lawrence v. Fox, 20 N. Y. 268; Clark v. Howard, 150 id. 232.

In Almond v. Hart, 46 App. Div. 431, the court said: “ The fact that the liability against Phippin, may remain unaffected by the promise of the defendants does not bring this action within the inhibition of the statute.”

The plaintiffs showed upon the trial that they demanded payment of the note from the defendant after it became due, thereby adopting the promise alleged to have been made by defendant. Whether or not the defendant could avail himself of the statute, it not having been pleaded, Crane v. Powell, 139 N. Y. 379, need not be considered.

Judgment reversed. New trial ordered, with costs to the appellants to abide the event.

MacLeax and Davis, JJ., concur.

Judgment reversed. New trial ordered, with costs to appellants to abide event.  