
    Hugh Tighe, respondent, v. James Morrison, appellant.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 17, 1886.)
    
    Statute of frauds.
    A paroi promise to save harmless a surety upon an administrator’s bond made to induce the surety to execute the bond by one of the principals, in order to secure certain benefits which would be derived by the promissor from the execution of the bond, is an original promise and not within the statute of frauds.
    Appeal from a judgement entered upon a verdict of the jury at the Livingston circuit, and from an order denying a motion for a new trial made upon the minutes of the court.
    
      S. Hubbard, for appellant, James Morrison.
    
      E. A. Nash, for respondent, Hugh Tighe.
   Haight, J.

This action was brought to recover the amount which plaintiff has been compelled to pay as surety upon an administrator’s bond.

In June, 1875, Ann McKittrick, Michael Dowdall, and the defendant, James Morrison, were appointed administratrix and administrators of the goods, chattels and credits of Hugh McKittrick, deceased, upon condition that they execute and file with the surrogate of Livingston county a bond with two sureties in the penal sum of $3,000. This bond was subsequently executed and filed, signed by the plaintiff and one William McLaughlin, as sureties. On the final settlements of the accounts of the administrators before the surrogate, it was by that court adjudged and decreed that there was due and owing from Michael Dowdall, as administrator, the sum of $1,582.35, which sum he was ordered to pay over within twenty days from the service upon him of a copy of the decree. Execution was subsequently issued thereon to the sheriff which was returned unsatisfied. Action was then brought upon the bond against this plaintiff as surety; the other surety being insolvent this plaintiff was compelled to pay the sum of $1,200, which sum was paid to compromise and settle the aforesaid action. Upon the trial of this action evidence was given on behalf of the plaintiff and other witnesses to the effect that the defendant, Morrison, called upon the plaintiff and stated that he had been chosen administrator of Hugh McKittrick, and wanted the plaintiff to sign his bond. That the plaintiff told him he did not understand much about such papers; that he then told the plaintiff that he had an interest in the estate for cattle, oats and butter, which the estate owed him, and he would do him a great favor if the plaintiff would sign his bond; and he said: I will guarantee before your boys, that you shall never lose one cent if you will sign my paper, and you will do me a great favor, as I will get money out of the estate.” The plaintiff thereupon consented to sign the bond; got in the buggy and went to the village with him and executed the same. It is true this evidence was controverted by the defendant, but the question was submitted to the jury under-proper instructions; and the jury by their verdict have found that this testimony was true. The question is thus presented as to whether or not the agreement of the defendant was within the statute of frauds.

The statute provides that every special promise to answer for the debt, default or miscarriage of another person shall be void, unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith.

The devastavit which the plaintiff was required to make good was commited by Dowdall. If, therefore, the promise of the defendant was simply a promise to guarantee as against Dowdall it would come within the statute, and the plaintiff could not maintain the action. But it is claimed that the promise was made to induce the plaintiff to sign the bond as surety for the defendant, and that by doing so the defendant was to reap a benefit to himself. He could he appointed administrator of the estate; could receive the commissions that were allowed for his services and also make good his claims against the estate.

in the case of Leonard v. Vredenburgh (8 Johnson, 29-39), Chief Justice Kent says, that “when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly-contracting parties, the case is not within the statute.”

In the case of Farley v. Cleveland (4 Cowen, 432), the rule as stated by Chief Justice Savage was: “ That where a promise to pay the debt of a third person arises out of some new consideration of benefit to the promisor or harm to the promisee, moving to the promisor either from the promisee or the original debtor, such promise is not within the statute of frauds. And to the same effect is the case of Nelson v. Boynton (3 Metcalf, 396-400).

These cases were all reviewed and approved by Chief Justice Comstock in the case of Malloroy v. Gillett (21 N. Y., 412-419).

In the case of Prime v. Koehler (77 N. Y., 91), it was held that where the purpose of a promise to pay the debt of a third person is to secure a benefit to the promisor, to reheve his property from a lien, or of securing or confirming his possession, the promise is original and not collateral and so is not within the statute of frauds.

The same rule was re-affirmed in the case of Smart v. Smart (97 N. Y. 559), and in the case of Ackley v. Parmenter (98 Id., 425), in which case it was said that to take the case out of the statute there must be a consideration moving to the promisor either from the creditor or the debtor, and beneficial to him, thus imparting to the promise the character of an original undertaking. See also, White v. Rintoul (49 N. Y. Super. Ct. 421).

It consequently appears to us that the rule is well settled that where the promise is made in consideration of benefits to be derived by the promisor from the act of the promisee, or harm to the promisee for doing the act, the promise is not void under the statute. In the case under consideration the promise was made by the defendant to induce the plaintiff to sign the bond. There were certain benefits to be derived by the act of the plaintiff in so signing. By that act the plaintiff became obligated to pay and make good any default of the administrators; he has now been compelled to pay, and it appears to us- that he may properly require the defendant to make good his guaranty. We do not understand that any demand was necessary before bringing the action. The defendant, in his answer, alleged that $100 of the money appropriated by Dowdall was appropriated with the knowledge and consent of the plaintiff, who indorsed Dowdall’s note for that amount, payable to the administrators of the estate for the purpose of having the same placed with the assets as a substitute for the money. Upon the trial the defendant offered to prove this allegation, and the same was excluded under the objection by the plaintiff. The amount of the devastavit, as we have seen, was $1,582.35. The plaintiff succeeded in compromising the suit brought for this amount for $1,200, $382.25 less than the amount that Dowdall was in default, as shown by the decree of the surrogate. The amount thus saved by the compromise was more than the $100 alleged to have been misappropriated with the knowledge and consent of the plaintiff. We think we may assume that the $100 was included in the settlement before the surrogate and embraced in the final compromise made by the plaintiff.

The judgment and order should be affirmed. So ordered.

Smith, P. J., Barker and Bradley, JJ., concur.  