Stromberg v. Loiacono

The plaintiff had a claim for goods sold and delivered against one Volo. The defendant was about to buy out said Volo, when plaintiff threatened to bring an action against Volo and have an attachment issued. The defendant, fearing that such a suit and the attachment threatened would disarrange his own plans for the purchase of the property of Volo, promised the plaintiff that, if he would refrain from bringing said suit and issuing said attachment, he, defendant, would pay the plaintiff’s said claim against Volo, which amounted to forty-seven dollars. The plaintiff accepted this offer and abandoned his intention to bring the said suit. The defendant thereupon completed his contract with Volo for the purchase by defendant of the property of said Volo. Thereafter plaintiff demanded the forty-seven dollars from defendant, who refused to pay the same. The plaintiff thereupon brought this action and recovered a judgment for the amount claimed. The defendant appeals.

The agreement between plaintiff and defendant was not *652in writing, and defendant claims that it was void under the Statute of Frauds, which requires all guarantees of the debts of another to be in writing and signed by the party to be charged. We cannot agree with this contention. The agreement in question was not the guarantee by defendant of the debt of Volo, within the ..meaning of the statute, but an original promise, founded on a .new consideration of benefit moving between the promisor, defendant, and the promisee, plaintiff, and was for the payment of a sum less than fifty dollars. It was, therefore, not within the statute, and was not required to be in writing. See White v. Rintoul, 108 N. Y. 226, 227; Emerson v. Slater, 22 How. Pr. 28. It was an independent agreement for the personal benefit of defendant, and the Statute of Frauds does not afford any defense to plaintiff’s claim.

The judgment must be affirmed, with costs to the respondent.

Freedman, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs to respondent.