
    Cooper & Polak Structural Iron Works, Appellant, v. David Rosing, Isaac Diamond and Clarence G. McKibbin, Respondents.
    (Supreme Court, Appellate Term, First Department,
    May, 1914.)
    Contracts — subcontractor to do certain work —default of subcontractor — benefit inuring to all parties.
    Where a subcontractor to do certain iron work on a building, because of nonpayment for work done, refused to continue, the oral agreement of the owner and lessee to pay him the full contract price to complete the work is not a promise to answer for the debt, default or miscarriage of the contractor, but an independent contract inuring to the benefit of all parties thereto, and being founded on a new consideration is enforceable.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, dismissing the complaint after plaintiff had rested.
    Horace London, for appellant.
    Marks & Marks (Franklin Bien, of counsel), for respondents.
   Whitaker, J.

Defendant David Bosing was the owner of certain premises in New York city. Defendants Diamond and McKibbin were lessees of the premises. One Tuchman had a contract with defendants Diamond and McKibbin to do certain structural work on said premises. Tuchman entered into a contract with the plaintiff as sub-contractor to do certain iron work for the sum of $900. Pursuant to that contract, plaintiff delivered $500 worth of iron beams and, claiming that he had not been paid therefor, refused to continue Ms contract. Whereupon plaintiff alleges that the defendants made a verbal contract with the plaintiff that if it continued and completed the work the defendants would pay it the full contract price of $900. Plaintiff completed the work and sues defendants for $400, balance due, crediting the defendants with a payment of $500. Defendants claim that this contract was void under the Statute of Frauds, in which the trial court concurred and dismissed the complaint, refusing to let the case go to the jury.

We tMnk that the trial court erred.

The plaintiff refused to complete the contract with Tuchman, through the completion of which the defendants would become the ultimate beneficiaries. In order to induce the plaintiff to continue and complete the work, defendants promised to pay the contract price therefor.

WMle the antecedent debt existed in favor of plaintiff against Tuchman, the promise of the defendants to pay was an original promise being founded upon a new consideration moving to and beneficial to them. It was an independent contract.inuring to the benefit of both plaintiff and defendants. The case comes clearly within the broad and general rules laid down in White v. Rintoul, 108 N. Y. 222 ; and directly within the decision of Sinkovitz v. Applebaum, 56 Misc. Rep. 527.

Guy and Page, JJ., concur.

Judgment should be reversed and new trial ordered, with costs to appellant to abide event.  