#### Edmund T. Oldham, Appellant, *v.*Frederick S. Pinkus, Respondent.

(Supreme Court, Appellate Term,

July, 1900.)

1. Statute of Frauds — Original promise — A consideration must move to the promisor and he beneficial to him.

A verbal promise of an employer, made to a creditor of his employee, to the effect that he would deduct monthly a certain sum from the salary of the employee so long as he was employed and pay it to the creditor upon his claim, accompanied by a verbal agree*200ment that the creditor would accept half the debt if paid within a month, is not enforcible against the employer as an original promise, for no consideration, beneficial to him, has moved to him from either the creditor or the debtor.

*2.*Same — Memorandum must state all the material terms of the contract.

Where the creditor also relies upon an unsigned memorandum of the said contract and upon a letter of the employer to him acknowledging that the memorandum correctly stated “ the points of settlement and the manner of payment thereof ”, the creditor cannot recover thereunder where it is apparent, from the evidence, that the memorandum does not state all the material terms of the contract.

Appeal from a judgment in favor of the defendant rendered in the Municipal Court of the city of New York, first district, borough of Manhattan.

Edmund T. Oldham, appellant in person.

Miller *&*Hartcorn, for respondent.

*Per Curiam.*

The appellant had a claim for professional services against one Drysdale, who was in the employ of the respondent. In January, 1900, the appellant called upon the respondent, and an agreement was arrived at which is set forth in the complaint. The allegation is that, in consideration of an agreement by appellant to forbear taking any proceedings upon his claim against Drysdale which would interfere with his employment by Pinkus, the latter agreed with the appellant for the payment of the claim, the agreement being made, as is said, with the approval of Drysdale. Up to this point, as will he seen, the complaint does not allege any agreement by the respondent that he would pay the claim, but merely an agreement for the payment of the cl aim — by whom it was to he paid not being specified. The complaint, however, goes on to state,, that the appellant himself prepared and sent to the respondent a letter to he signed by him, reciting the terms of the aforesaid agreement. The appellant certainly cannot claim that his verbal- agreement with the respondent was any more favorable to Mm than is disclosed by the letter which he himself wrote. This letter, which was addressed to the appellant and in*201tended to be signed by the respondent, read as follows: “ With the understanding that this firm is in nowise responsible for Mr. Drysdale’s indebtedness to you. As Mr. Drysdale has consented to the arrangement we will so long as he is employed by us pay to you or your order twenty dollars on the first day of each month, to be credited by you on account of your claim against him, and we will charge the same to Mr. Drysdale monthly. This arrangement is on the condition that if Mr. Drysdale will at any time during the current month pay you one half of your claim, to wit, $166.54, you will accept and'receive the amount in full payment of your claim against him.”

This letter the respondent refused to sign, but wrote to the appellant in reference thereto as follows:

“ I have received your letter of the 12th inst., and while I acknowledge the correctness of your proposition as embodying the points of settlement and the manner of payment thereof, still, I hesitate to put my name to such a document, because it is entirely negative, and, therefore, ultimately useless.”

The respondent claims that the alleged agreement was without consideration, and void under the Statute of Frauds. It is obvious that the respondent did not accept the indebtedness as his own, and agree to pay it upon that basis. The very first sentence in the letter drawn by the appellant, as expressing the agreement, negatives such a proposition. Evidently the agreement was that twenty dollars a month was to be paid out of the salary to be earned by Drysdale; in other words, the respondent was to keep back, out of money belonging to Drysdale, the stipulated amount, and pay it over to the appellant for Drysdale’s account and as part payment of Drysdale’s debt. At the time of the respondent’s alleged promise to pay Drysdale’s debt he was under no present duty to do so, and if he is to be held upon his promise, not only must it be in writing, to comply with the Statute of Frauds, but, whether treated as an assumption of the debt or as a promise to pay the debt of another, it must rest upon a sufficient consideration. That consideration must be one moving to the promisor (in this case the respondent), either from the creditor or the debtor. It must be beneficial to the promisor. Ackley v. Parmenter, 98 N. Y. 422, 433. In the present case there does not seem to have been any consideration moving to the respondent. True, the unsigned letter states that the agreement was made upon condition that the *202appellant would accept from Drysdale one half his claim in full payment and satisfaction, if paid during “ the current month.” This condition, even if construed as a promise by the appellant, was in no sense beneficial to the respondent, hut only to Drysdale. It made no difference to the respondent how large Drysdale’s debt was, for he was only to pay so long as Drysdale remained in his employ, and then only out of the wages earned by Drysdale. ,The same observations apply to the allegation in the complaint as to the appellant’s agreement not to proceed against. Drysdale to collect the claim. That promise, if made, was beneficial to Drysdale, not Pinkus. In any event no such promise on the part of the appellant is proven. It is alleged in the fourth paragraph of the complaint that Pinkus agreed for the payment of the claim in consideration of an agreement on the appellant’s part to forbear taking any proceedings upon his claim, to the interference of the employment of Drysdale by Pinkus. This allegation is denied by the third paragraph of the answer. The fact was thus put.in issue, and no evidence was given to sustain it. It is significant also that no reference to such an agreement on the appellant’s part is to he found in the written memorandum drawn by him immediately after his conversation with Pinkus and alleged, in the complaint, to recite the terms of the agreement between the appellant and the respondent. H the appellant relies upon the unsigned memorandum to take the case out of the operation of the Statutes of Frauds, and in that way only can he have any claim against the respondent, he must he deemed to assert that the memorandum contains the whole contract, for the rule is well established that, in order to satisfy the Statute of Frauds, the memorandum must contain all the substantial and material terms of the contract between the parties, and must show on its face what the whole agreement was, in so far as the same is executory, remains to he performed, and rests upon an unfulfilled promise. Drake v. Seaman, 97 N. Y. 230. Hence, the appellant’s alleged promise to refrain from prosecuting Drysdale, if attempted to he proved, would be unavailing even if made for the respondent’s benefit. We see no ground upon which a judgment for the appellant could he sustained. The respondent’s alleged agreement was clearly not an assumption of Drysdale’s debt, hut merely a promise, if certain conditions continued, to pay the debt of another. Such a promise, to be valid, must he evidenced by a written memorandum, and be *203founded upon a sufficient consideration, and the memorandum must contain the whole agreement between the parties. If the memorandum, in evidence, contains the whole agreement, there was no consideration for the respondent’s promise. If there was a consideration, consisting of the appellant’s promise to refrain from prosecuting Drysdale, it is not included in the memorandum, which, by reason of the omission, is not sufficient, under the Statute of Frauds, to support an action. In either case, the appellant must fail in his action upon the respondent’s alleged agreement. Judgment affirmed, with costs.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment affirmed, with costs.