Tomaso, Feitner and Lane, Inc. v. Brown , 3 A.D.2d 671 ( 1957 )

Action to recover an unpaid balance for services requested by and rendered to Thomas G. Campbell Co., Inc., upon an alleged agreement by defendant with Campbell to guarantee payment of all amounts due plaintiff from Campbell for such services. Defendant pleaded the Statute of Frauds as a complete defense. The appeal is from a judgment entered in favor of plaintiff after a trial by the court without a jury. Judgment reversed on the law, with costs, and complaint dismissed. The findings of fact below are affirmed. The proof shows that plaintiff was retained by Campbell and rendered services as an advertising agent to that corporation, to which it rendered bills and from which it received payment of the greater part of the admitted indebtedness, and that defendant, a stockholder of Campbell, had advanced substantial funds to it as working capital, but refused to continue to do so. The defendant is not the primary debtor. He is answerable only as a promisor to pay the debt of another. In our opinion the Statute of Frauds (Personal Property Law, § 31, subd. 2) is a complete defense to the action. The alleged agreement by defendant with Campbell did not concern this specific indebtedness nor was it intended thereby that defendant was to replace Campbell as primary debtor (BuTkley v. Shaw, 289 N. Y. 133). Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.