
    KUHNE et al. v. KRAMER.
    (Supreme Court, Appellate Term.
    March 5, 1909.)
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by Percival Kuhne and others against Alfred Kramer on defendant’s oral promise to pay an existing debt. From a judgment for plaintiffs, defendant appeals. Affirmed.
    Argued before GILDERSLEEVE, P. J., and MacLEAN and DAYTON, JJ:
    Eugene Cohn and Julius Levy, for appellant.
    Katz & Sommerich, for respondents.
   PER CURIAM.

Judgment affirmed, with costs.

MacLEAN, J.

(dissenting). The liability of the defendant upon his oral promise to pay an existing debt owing to the plaintiff by the firm of Kramer & Strauss, of which firm defendant was not. a member, was not established by novation (Ryan v. Pistone, 89 Hun, 78, 35 N. Y. Supp. 81, and affirmed in 157 N. Y. 705, 52 N. E. 1126), as the evidence does not disclose an assent thereto by the firm of Kramer & Strauss, and “there must be the consent of all the parties to the substitution, resulting in the extinction of the old obligation and the creation of a valid new one” (Izzo v. Ludington, 79 App. Div. 272, 276, 79 N. Y. Supp. 744, and affirmed in 178 N. Y. 621, 70 N. E. 1100). Nor was liability established upon an original promise by the opening of an account with and the extension of credit to the defendant. Cardeza v. Bishop, 54 App. Div. 116,. 66 N. Y. Supp. 408.

The statute of frauds pleaded in defense was therefore good defense, and the judgment rendered in favor of the plaintiffs herein should be reversed.  