Opinion
February 28, 1908.
Theodore T. Baylor, for the appellant.
Morris Whitehouse, for the respondents.
This is an appeal from a judgment of the Municipal Court in an action brought against the defendants to recover the purchase price of a quantity of lumber sold to the Shea-Ellis Construction Company to be used in the erection of a building at Dreamland for the Creation Company, a copartnership of which the defendants were president and vice-president respectively. It was claimed by plaintiff that defendants promised to pay for the lumber at the time the same was purchased by the contractor. An issue of fact was presented upon the trial as to whether defendants made such a promise; the learned justice has decided in favor of defendants and there is sufficient evidence in the case to sustain his finding. We are not clear, however, that he decided the case upon the facts. He evidently believed that the agreement claimed by plaintiff to have been made was an agreement to answer for the debt, default or miscarriage of the Shea-Ellis Construction Company, and, therefore, within the Statute of Frauds. No opinion was written and we are unable to say upon what ground the case was finally decided. The decision must be sustained, and it makes no difference whether it was decided upon the facts or the law. Plaintiff's president testified that he had a conversation with one of the defendants at the time the order was received over the telephone as follows: "I said we have here an order from the Shea-Ellis Construction Company for lumber, and we don't know anything about them —. Q. For what building? A. Creation Building, he said that is all right, I will see you paid, I said that will hardly go in a transaction like that, we will have to deal with you direct, he said that is all right, any lumber shipped to the Creation Building, we will pay for. I said who is we; he said Mr. Ryan and myself. I said how does Mr. Ryan come in this, he said anything I say will go. * * * He said they were both interested in this Creation Building." Subsequently the lumber was delivered and bill therefor rendered to the Shea-Ellis Construction Company, the principal debtor. The case at bar is distinguishable from the case of Almond v. Hart ( 46 App. Div. 431). There the promisors were the owners of the building and the promise was an original undertaking, while in the case at bar defendants were merely the officers of a corporation which had an interest in the building; they undertook by a collateral promise to answer for the debt of a third person; it was not their debt, and the same would have been true if the indebtedness had been that of the corporation of which they were officers. ( Mechanics Traders' Bank v. Stettheimer, 116 App. Div. 198. ) The promise, assuming one to have been made, was void, and the judgment must be affirmed, with costs.
WOODWARD, JENKS, HOOKER and GAYNOR, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.