#### Elias A. Mead, Resp’t, *v.*Charles E. Parker, Appl’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed October,*1886.)

Evidence — Guaranty — What is original contract — Parol evidence ADMISSIBLE TO PROVE WAIVER OP CONDITION IN CONTRACT NOT REQUIRED BY STATUTE TO BE IN WRITING.

Defendant, who was the owner of a bond and mortgage, sold and transferred them to one J. for a sum of money, and by an instrument in writing defendant guaranteed their collection. J. thereafter transferred the bond, mortgage, and the defendant’s guaranty to the plaintiff, and he having foreclosed the mortgage and obtained a judgment for a deficiency upon which an execution has been issued and returned unsatisfied, brought this suit upon the guaranty. It was defended on the ground that plaintiff was not reasonably diligent in his efforts to collect. Plaintiff at the trial introduced parol evidence for the purpose of showing that defendant consented to the delay and waived performance of the condition of the guaranty. Against the contention of defendant that as the guaranty was a promise to answer for the (debt of another and necessarily put in writing to satisfy the requirement of the statute of frauds and that parol evidence of such a contract and waiver' was inadmissible. *Held,*that it was not necessary to the validity of the ■guaranty that it should be in writing. That it was not a collateral but an ■original undertaking; not to answer for the debt of another, but an agreement in which the promisor was principal. The agreement of the defendant, therefore being one which was not required by statute to be in writing it falls within the general rule respecting the admission of parol proof to show ■an extension of the time of performance or a waiver of one or more of the conditions of an agreement which by the voluntary act of the parties, but not by requirement of statute, is put in writing, and parol proof was admissible for that purpose.

Appeal from a judgment on a verdict rendered at tbe Caynga circuit, and from a special term order, denying a motion for a new trial, made on a case.

*James R. Cox,*for appl’t; *H. V. Howland,*for resp’t.

Smith, P. J.

The defendant, who was the owner of a bond :-and a mortgage collateral thereto, executed by Lewis Paddock, sold and transferred them to Cordial S. Jennings, in consi deration • of the sum of seventeen hundred dollars, paid by him to the defendant therefor, and by an instrument in writing defendant guaranteed their collection. Jennings transferred the bond and mortgage, and the defendant’s guaranty to the plaintiff, and he having foreclosed the mortgage and obtained a judgment for a deficiency upon which an execution has been issued and returned unsatisfied, has brought this suit upon the guaranty. The suit is defended on the ground that the plaintiff has .not been reasonably diligent in his efforts to collect. There .appears to have been a delay of about two and a half years after the maturity of the bond and mortgage before the foreclosure was instituted. At the trial, the plaintiff introduced parol -evidence for the purpose of showing that the defendant consented to the delay, and waived performance of the condition of the guaranty which the law' implies that the assignee of the *195bond and mortgage should proceed with reasonable diligence to collect them.

It is contended by the counsel for the appellant that, as the guaranty was a promise to answer for the debt of another, it was necessarily put in writing to satisfy the requirement of the statute of frauds, and parol evidence of such consent and waiver is inadmissible. This case was before us on a former appeal, and it was then held that the reception of' parol proof tending to show such consent and waiver subsequent to the making of the guaranty, was not error. (MS. op. of Bradley, J., Jan. 1., 1885.) We adhere to that ruling.

But it was not necessary to the validity of the defendant’s guaranty that it should have been in writing. The complaint alleges, and the answer admits by not denying, that the guaranty was executed by the defendant, upon a sale and transfer by him of the bond and mortgage for a valuable consideration paid to him by the purchaser. It was, therefore, not a collateral, but an original undertaking; not a promise to answer for the debt of another, but an agreement in which the promisor was the principal. Such an undertaking is not within the statute. The-case is analogous to that of *Milk*v. *Rich,*decided in the fourth department, (15 Hun, 178,) and affirmed in the court of appeals, (80 N. Y., 269.) Several other cases to the same effect are cited by Earl, J., in *Milk*v. Rich, (p. 271.) The agreement of the defendant being one which was not required by statute to be in writing, the case falls within the general rule respecting the admission of parol proof to show an extension of the time of performance, or a waiver of one or more of the conditions of an agreement, which, by the voluntary act of the parties, but not by the requirement of statute, is put in writing. That parol proof is admissible for such purpose has long been the law in this State. *(Fleming v.*Gilbert, 3 Johns., 528; *The Mayor v. Buller,*1 Barb., 325; *Esmond*v. *Van Benschoten,*12 Barb., 366; *Stone*v. *Sprague,*20 Barb., 509.)

The evidence was sufficient, we think, to authorize the jury to find that the defendant consented to the delay.

The judgment and order should be affirmed.

Barker, Haight and Brajdley, JJ., concur.

Affirmed.