#### Roscoe Lumber Company, Appellant, *v.*William H. Reynolds and Thomas J. Ryan, Respondents.

Second Department,

February 28, 1908.

Statute of Frauds — oral promise by officers of corporation to answer for default of contractor.

An oral promise by officers of a corporation which was interested in a building under construction by an independent contractor, to pay for- building material if furnished to the contractor, is void under the Statute of Frauds.

Appeal by the plaintiff, the Roscoe Lumber Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendants, rendered on the 11th day of February, 1907.

*540*Theodore. T.*Baylor, for the appellant.

*Morris <&*Whitehouse, for the respondents.

Rich, J.:

This is an appeal from a judgment of the Municipal Conit 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.* Ho 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 nj>on 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 *541bar is distinguishable from the case of *Almond*v. *Hart*(46 App. Div. 431). There the promisors were' the owners of the building and the protnise. 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 collat- ■ eral promise to answer for the debt of a third p'erson; 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.

*

 See Pers. Prop. Law (Laws of 1897, chap. 417), § 21, subd. 2.— [Rep. '