Summary
In Morris v. Alston, 92 Ala. 502, 9 So. 315, cited by appellant, it was said that it was not permissible by a parol agreement to so alter a mortgage in its operation as to cause it to stand as security for a new debt, different in character and amount from that mentioned in the instrument, payable at a different time and to another person.
Summary of this case from McWhorter v. TysonOpinion
Submitted September 14, 1999
October 25, 1999
In an action, inter alia, to recover damages for breach of an oral contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Goldstein, J.).
ORDERED that the appeal from the order dated June 26, 1998, is dismissed, as that order was superseded by the order dated September 24, 1998, made upon reargument; and it is further,
ORDERED that the order dated September 24, 1998, is affirmed insofar as reviewed; and it is further,
ORDERED that the respondent is awarded one bill of costs.
We agree with the Supreme Court that the defendants are not entitled to summary judgment dismissing the first and fourth causes of action as barred by the Statute of Frauds, since there are triable issues of fact regarding whether the oral promise in question represents an original and independent duty by the defendants to make payment (see, Becker v. Wells, 297 N.Y. 275 ; Herman v. Gillette, 251 A.D.2d 374 ; Rowan v. Brady, 98 A.D.2d 638 ).
The defendants' remaining contentions are without merit.
MANGANO, P.J., O'BRIEN, RITTER, and SCHMIDT, JJ., concur.