
    Mary M. Ward, Appellant, v. Price W. Hasbrouck, Respondent, Impleaded with Charles Henry Webb.
    
      Contract —what evidence of mailing does not create a presumption that a Utter was received by the person to whom, it was addressed — contract of guaranty established by a number of papers.
    
    Evidence that the writer of a letter mailed it, not accompanied by proof showing the address to which it was mailed or that he paid the postage on it, is insufficient to warrant the presumption that the person to whom the letter was addressed ever received it, especially where the original letter is afterwards found in the possession of the writer and such possession is. not explained.
    Under the Statute of Frauds it is net necessary that the writing, relied upon to ■ prove a contract of guaranty, should be made at the time that the contract was made, nor that it should have been delivered to the promisee, nor that the contract should appear from a single paper, but such contract may be shown by a number of papers taken together which clearly refer to the same transaction.
    Appeal by the plaintiff, Mary M. Ward, from á judgment of the Siipreme Court in favor of the defendant Price W. Hasbrouck, entered in the office of the clerk of the county of Hew York on the 17th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Hew York Trial Term.
    
      Henry M. Ward, for the appellant.
    
      John A. Straley, for the respondent,
   Rumsey, J,:

This action ivas brought to recover certain arrears of rent upon a lease alleged to have been made by the plaintiff and one Charles H. Webb. Plaintiff claims' that Hasbrouck guaranteed the payment of the rent. No question is made upon the nature of the promise of Hasbrouck, whether collateral or original, nor do we determine anything on that point because it is not material to this appeal.

The question presented arises solely- upon exceptions taken to the rulings of the court in rejecting testimony offered and upon the dismissal by the court of the complaint-at the close of the plaintiff’s case.

It appears that on the 7th day of December, 1892, Webb took a lease of offices- in a building, Nos. 165 and 167 Broadway, owned by the plaintiff, until the 1st day of Hay, 1893, with the option of the renewal of the lease at the time the first rent became due after that time.

The lease-was renewed by Webb, but a portion of the rent upon the new lease was not paid, and it is to recover this unpaid rent that this action is brought. When the original lease was made, Hasbrouck and Webb went to the office of the plaintiff’s agent and had a conversation in regard to leasing the office, in which, at the request of Hasbrouck, the terms upon which the premises would be leased until the 1st of Hay, 1893, were stated to him, and it was further stated by the plaintiff’s agent, that they might have “ an option upon the offices at $2,500 a year, for three years after the first of Hay,” 1893.

It was stated by Hasbrouck that these terms were satisfactory, and thereupon the lease was closed. The plaintiff offered in evidence a letter dated the 27th of April, 1893, addressed to Hasbrouck, calling his attention to the fact that the option given to Hasbrouck for one year from Hay first, at $2,500 per annum, would expire on the first day of February. . The plaintiff’s agent, who wrote the Tetter, testified that he mailed this letter to Hr. Hasbrouck, but he was unable to account for the fact that, although he had mailed it to Hasbrouck, he had the original letter in his possession. The court upon these facts excluded the letter, and the plaintiff had an exception. We think this ruling was hot incorrect. There was the mere statement of the plaintiff’s agent that he had mailed the letter without showing the address to which it was mailed, or that he paid the postage on it, and that statement was insufficient, in view of the fact that the plaintiff herself had the letter in her possession after it was written, to warrant the presumption that Hasbrouek had ever received it. For that reason the ruling of the learned court in that respect was correct. The plaintiff offered in evidence the letters passing between Francis E. Ward, her agent, and Webb, dated the 30th and 31st of January, 1893. These were objected to and excluded upon the ground that they were irrelevant and immaterial as to the defendant Hasbrouek.. Taken together, the letters amount to a lease by the plaintiff to Mr. Webb of the office occupied by him from the 1st of May, 1893,. to the 1st day of May, 1894, at a rent of $200. As the defendant Hasbrouek was liable upon a collateral contract of guaranty, it was necessary for the plaintiff to establish that there had been a contract between herself and Webb for the lease ■ of the premises, and the objection taken, that the letters were irrelevant and immaterial, was not well taken, because the contract between herself and Webb lay at the very basis of the claim alleged against Hasbrouek. There ■could have been no contract of guaranty for the rent upon the part of Hasbrouek until it was shown that there was a contract between the plaintiff and Webb for the lease of the premises. Of course, although such a contract had been shown, Hasbrouek would not be liable until the plaintiff made further proof that he agreed to guarantee the payment of the rent. But the first step in that direction consisted in showing that there was a' contract of leasing, the rent for which was to be guaranteed by Hasbrouek. The letters were clearly competent, although standing alone they would not be sufficient to make a complete ease against the guarantor.

The plaintiff further offered two other letters written by Hasbrouck, one dated the 31st of January, 1893, and one the third of June of the same year. These two letters taken together wpuld have shown that Hasbrouek knew of and consented to the lease for one year, from May 1, 1893, at $200 a month, and that he was liable for the rent for that time at that rate. The objections to the letters were not well taken. It is. not necessary that the writing required by the Statute of Frauds to prove a. contract of guaranty should-be made at the timé of making the contract, because the writing is only requisite to make valid proof of the contract. Heither is it necessary that the proof should be in one paper, but. the contract may be shown by any number o'f papers taken together, provided that it is clear from the papers themselves that they refer to the same transaction. It was not necessary either that the paper relied on should have been delivered to the promisee. (Peabody v. Speyers, 56 N. Y. 230, 237; Gibson v. Holland, L. R. [1 C. P.] 1.) These two papers if taken together would have established the liability of Hasbrouck for the rent. They should, therefore, have been, received in evidence. For the error of the court in excluding them the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  