144 N.Y. 432, First Nat. Bank v. Chalmers

• Citation: 144 N.Y. 432
• Party Name: THE FIRST NATIONAL BANK of Sing Sing, Respondent, v. THOMAS H. CHALMERS et al., Appellants.
• Case Date: January 15, 1895
• Court: New York Court of Appeals

Page 432

144 N.Y. 432

THE FIRST NATIONAL BANK of Sing Sing, Respondent,

v.

THOMAS H. CHALMERS et al., Appellants.

New York Court of Appeal

January 15, 1895

Argued December 17, 1894.

Page 433

COUNSEL

Calvin Frost for appellants. The doctrine of stare decisis is the only one which can possibly be invoked by respondent, and it is difficult to see how it is controlling in this case. (Worrall v. Munn, 53 N.Y. 185.) This case comes within the operation of the Statute of Frauds, which declares void every promise to answer for the debt of another, unless it is in writing and signed by the person sought to be charged. (Blyer v. Monholland, 2 Sandf. Ch. 526; Lawrence v. Fox, 20 N.Y. 268; Burr v. Beers, 24 id. 179; Mallory v. Gillett, 21 id. 412; Garnsey v. Rogers, 47 id. 233; Acker v. Parmenter, 98 id. 425; Fullam v. Adams, 37 Vt. 391; Halsey v. Read, 9 Paige, 445; Vrooman v. Turner, 69 N.Y. 284; Wheat v. Rice, 98 id. 302.) There was no consideration for the promise of defendants. The only consideration claimed was the giving of the confession of judgment, which was invalid. (Code Civ. Pro. § 1273; Ward v. Mitchell, 117 N.Y. 439; Gifford v. Corrigan, 105 id. 227; McKnight v. Develin, 52 id. 399; Dunning v. Leavitt, 85 id. 30-35; Crowe v. Lewin, 95 id. 427; Loeb v. Willis, 100 id. 235.)

Page 434

Francis Larkin for respondent. The judgment by confession was valid and drawn in compliance with the Code. (Code Civ. Pro. § 1274; Read v. French, 28 N.Y. 285; Hopkins v. Nelson, 24 id. 518; Miller v. Earle, Id. 110; McKee v. Tyson, 10 Abb. Pr. 392; Sheldon v. Stryker, 34 Barb. 116; Dunham v. Waterman, 17 N.Y. 9; 3 Wait's Pr. 691, 694; U. Bank v. Bush, 36 N.Y. 631; Mitchell v. Van Buren, 27 id. 300; Williams v. Herman, 33 How. Pr. 241; Nat. P. Bank v. Salaman, 23 N.Y. S. R. 566; Hoppock v. Donaldson, 12 How. Pr. 141; Marks v. Reynolds, 12 Abb. Pr. 403; Frost v. Koon, 30 N.Y. 428.) The case has been settled by the Court of Appeals. (31 N.Y. S. R. 526.)

FINCH, J.

What constitutes an original promise, upon which the Statute of Frauds does not operate, and which, therefore, may be valid and effectual without a writing, is fairly settled in one direction at least. Wherever the facts show that the debtor has transferred or delivered to the promisor, for his own use and benefit, money or property in consideration of the latter's agreement to assume and pay the outstanding debt, and he, thereupon, has promised the creditor to pay, that promise is original, upon the ground that by the acceptance of the fund or property under an agreement to assume and pay the debt the promisor has made that debt his own, has become primarily liable for its discharge, and has assumed an independent duty of payment irrespective of the liability of the principal debtor. (Ackley v. Parmenter, 98 N.Y. 425; White v. Rintoul, 108 id. 223.) In such a case the debt has become that of the new party promising; his promise is not to pay the debt of another, but his own; as between him and the primary debtor the latter has become practically a surety entitled to require the payment to be made by his transferee. The consideration of the primary debt, by the transfer of the money or property into which that consideration had been in effect merged, may be said to have been shifted over to the new...