
    CITY COURT OF NEW YORK, GENERAL TERM,
    MARCH, 1902.
    John Boeff et al., Respondents, v. Charles M. Rosenthal, Appellant.
    Appeal from a judgment in favor of plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The opinion states the facts.
    Albert Erdman, for appellant.
    Manheim & Manheim, for respondents.
   Delehanty, J.

Defendant being the owner of certain real estate in this city conveyed the same to the firm of Klein & Friedman, a purchase-money mortgage being executed for a part of the consideration price thereof. Thereupon defendant procured for his grantees a building loan to aid them in the erection of certain buildings on said property, secured by bond and mortgage on the premises in question, and it is conceded that defendant was a part owner of that mortgage. It was then that the plaintiffs agreed with Klein & Friedman to furnish certain material to be used in the construction of said buildings, payment for same to be made as the structure progressed. Klein & Friedman having defaulted in the payments, it is claimed that defendant orally promised plaintiffs in the presence of Klein & Friedman, and at their solicitation, that if they would complete their work, operations upon which had ceased when Klein and Friedman defaulted, that he would pay them for all material thereafter to be furnished in connection with the buildings, and also in consideration thereof pay the sum of $200 then owing to the plaintiffs by Klein & Friedman for materials already furnished. Plaintiffs accepted the proposition, and thereupon supplied as alleged, materials and workmanship of the value of $830, and defendant refusing to pay the same suit was instituted for the collection of the full amount of $1,030. Defendant denied the agreement in question, which, if made, he claimed was in violation of the Statute of Frauds. The jury having returned a verdict for plaintiffs for $830, the question now presented is whether the recovery based upon the oral promise can be sustained.

We have carefully examined the authorities cited by appellant, particularly Ackley v. Parmenter, 98 N. Y. 425, and White v. Rintoul, 108 id. 222, in order to ascertain if, as claimed, the Court of Appeals had in any way expressed views different from those laid down in the case of Merserau Co. v. Washburn 6 App. Div. 404, the facts in which are very similar to those in the case at bar. We have been unable to make any such discovery, but upon the contrary find a uniformity of opinion upon the law in question which is summarized in the leading case of Mallory v. Gillett, 21 N. Y. 412, and since followed by a long line of cases upon the subject. Within those authorities, while the effect of defendant’s promise was to pay the debt of Klein & Friedman, yet his object in so doing was to bring about the completion of the buildings erected upon the land upon which he had a purchase-money mortgage, and also an interest in a building loan mortgage following it, and that promise therefore was a new and original one and not within the Statute of Frauds. The effect of the transaction was as stated by Judge O’Brien in the Merserau Co. case to rescind or cancel the contract between plaintiffs Klein & Friedman, and to substitute a new and original agreement, by the terms of which, in consideration of defendant’s premise to pay the $200 balance- then due, plaintiffs undertook to and did supply material, and do work remaining to be done upon the houses, the reasonable value of which was proven to be $830. We consider that case a direct authority, and in principle controlling. Unable to discover any errors of ruling it follows that the judgment and order appealed from must be affirmed, with costs.

Seabuby, J., concurs.

Judgment and order affirmed, with costs.  