Whether Rudulph had authority to commit the defendant brewing company to the engagement on which plaintiff sued, and whether this engagement was an original undertaking to indemnify the plaintiff against a default of Edgewater Island Park, Inc., or was a special promise to answer for such a default and hence was within the statute of frauds (Pers. Prop. Law, § 31, subd. 2; Cons. Laws, ch. 41), were questions of fact and were properly left to the jury. (See 1 Mechem on The Law of Agency [2d ed.], § 296) Brown v. Weber, 38 N. Y. 187; Tighe v. Morrison, 116 N. Y. 263.) The question whether the agency alleged by the plaintiff was opposed to public policy is not presented by this record.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.

Loughran, Finch, Rippey, Conway and Desmond, JJ., concur; Lehman, Ch. J., dissents and votes to affirm; Lewis, J., taking no part.

Judgment accordingly.