
    Charles Lachman, Resp’t, v. Elmer V. Irish, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    Statute of frauds—Promise to pay workmen of another.
    The workmen employed by a contractor refusing to work unless they got their pay, defendant, who was an insurance agent and engaged in securing loans on unfinished buildings in course of erection, told them to go on and he would see that they got their money. Held, that if this could be assumed to be an original undertaking as to work to be thereafter performed, yet, in the absence of proof of a consideration moving to defendant, it was collateral to the debt then due from the contractor for work previously performed, and hence within the statute of frauds and void because not in writing.
    Appeal from judgment of Erie county court, entered on verdict in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial. The complaint alleged that the defendant was indebted to the plaintiff, also to Andrew Michel,. Richard Leadbitter, James R. Clark, Alexander Carver, Edward Lee, Elijah B. Harriman', William Lansdell, John 0. Reinhardt and Peter A. Nie severally for work, and that the said persons other than the plaintiff had assigned their claims to him. The plaintiff recovered for his work, also for that of Carver, Lee, Michel and Harriman, amounting with interest to $75.87 and costs! The defendant, by " his answer, put in issue the allegations of the complaint.
    
      Jonathan L. Slater, for app’lt; O. C. De Witt, for resp’t.
   Bradley, J.

The plaintiff and his assignors of the claims transferred to him, and on account of which the judgment was recovered, had, on the employment of one James C. Olmstead, performed work for him upon six houses he was building, two of them on Ferry street and the'other four on Howell street, in the city of Buffalo. The evidence on the part of the plaintiff tends to prove that- on one occasion the defendant was at the place where Michel, Harriman and Lee were or had been at work on one of the Ferry street houses, and at the time were “ laying off there, and they stated to him that they would not work any more ■until they got their pay for what they had done, and that the defendant said to them, “You go ahead, and do what is right, and 1 will see you through.” Another of the witnesses, referring to the same interview, states that the defendant said, “ What’s the matter with you boys ? ” and they said, • “ We have worked pretty nearly long enough without some money,” and the defendant then said, “ Now, you boys, go on to work and I will see you all right.’” And that, on another occasion, when the defendant and Olmstead were together, the plaintiff and Carver, who had been at work on the Howell street houses, asked for payment for their work and that the defendant said to them, “ You fellows need not be alarmed, about your money; I will see that you get it; ” that he also said that he had money in the bank and “ told us to go tight on ; that we would not lose a cent; that he would see that we got it.” All of these persons did some work on the buildings after these promises, but the time they worked, or.,the amount of compensation to which they were entitled for services thereafter performed by them does not ' distinctly appear by any evidence. The recovery was for the services performed both before and after that time.

The evidence of the promises of the defendant thus given must, for the purposes of this review, be treated as true, notwithstanding the contradiction of it on the part of the defense. And the question arises whether any valid undertaking to pay those-men was assumed by the defendant. So far as liability had accrued at the time such promises were made, the debt due to each of those workmen was that of Olmstead, by whom they had. been employed and for whom they had performed the service: The defendant was an insurance agent and engaged in the business of procuring loans, secured upon buildings in the course of-, construction from time to time as the work progressed in course of completion, for persons engaged in building them. This was-the business which first brought him to the incompleted structures - which Olmstead was erecting and attempting to complete. It is evident that the latter, not having the means to do it, was depend- - ent upon loans to enable him to proceed with the work. His de-- - fault in payment of the workmen produced uneasiness on their-part and an apparent purpose to quit unless payment was made or assured when the defendant’s promise was made. Thereupon they continued to work. If it be assumed that his promise was an original undertaking as to the work thereafter performed by these men, it was clearly collateral as to the debt then due them from Olmstead, unless there was some new consideration beneficial to the defendant riioving to him which had the effect to make his promise one to pay his own debt. Ackley v. Parmenter, 98 N. Y., 425; White v. Rintoul, 108 id., 222; 13 St. Rep., 495.. Then the doctrine of Lawrence v. Fox, 20 N. Y., 268, would be applicable in support of the promise.

It does not appear that the defendant’s promise was founded upon any consideration moving to him creating an obligation in discharge of which he promised to pay those existing debts of Olmstead. It is true he purchased of Olmstead the two Uncompleted houses on Ferry street, and it may be assumed that he did this before the promises referred to were made by him. But it does not appear what the consideration was of the sale or that it had any relation to the debts which his grantor then owed the workmen, nor does it appear how much of the debts due them arose for work performed upon those two houses after the time of his purchase. Such work was presumptively for his benefit, and from his promise to pay for it would arise an obligation to do so. Beyond that the oral promise of the defendant in its relation to work performed before it was made was collateral to the debt of Olmstead existing for it, and, therefore, was within the statute which provides that a promise to answer for the debt, default or miscarriage of another is void unless in writing, subscribed by the party to be charged with it. 2 R. S., 135, § 2.

In Prime v. Koehler, 77 N. Y., 91, the consideration moving tot-the promisor secured to him a substantial .benefit by way of .relieving his premises from the foreclosure of an existing lien upon them. The. promise was well held to be an original ■undertaking on his part. The cases of King v. Despard, 5 Wend., 277, and Quintard v. De Wolf 34 Barb., 97, approach nearer to'the support of the plaintiff's claim than any others to which our attention has been called, yet they are distinguish■able from the present case. The results there were reached upon the ground that the contracts under which the work was commenced were abandoned, and new independent and original undertakings entered into, covering its entire performance. In the case at bar Olmstead remained liable for the work which had been performed by those parties, and the evidence failed to show that the defendant had assumed the payment of it upon any consideration moving. to him which made the amount •of such liability his debt. Payne v. Baldwin, 14 Barb., 570; Weyer v. Beach, 14 Hun, 231; Belknap v. Bender, 75 N. Y., 446; Brown v. Weber, 38 id., 187.

ff it should turn out that the defendant, as consideration of the sale of the Ferry street houses to him, promised to pay. the money due from Olmstead to those workmen, he would be liable to them therefor. But that does not appear by the record before us. And no support in the evidence is seen for the recovery of the amount due for the work performed by them prior to the time of the alleged promises. This question ■was raised by exceptions to the charge, and by refusals to ■charge the jury as requested. The fact that Olmstead made a :general assignrnent for the benefit of his creditors to the defendant has no essential bearing upon any question for the purposes of this review.

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

Dwight, P. J., Lewis and Haight, JJ., concur.  