#### John Naylor, Jr., Appellant, v. William H. Davis, Jr., Respondent.

Third Department,

January 6, 1909.

Novation— agreement by grantee to pay debt of grantor— facts raising question for jury — evidence —• oral proof of consideration for conveyance — Statute of Frauds.

Action brought upon the theory that the defendant, a son of the maker of a promissory note, had assumed the payment of the note in consideration of a transfer of the maker’s property. Evidence examined, and *held,*that it was for the jury to say whether the defendant had assumed the debt and that a dismissal of the complaint was error.

The fact that deeds conveying the maker’s lands to the defendant did not show on their face that the latter assumed his grantor’s debt is not conclusive on that question, but the consideration for the conveyance may be shown by parol. So, too, the consideration for an oral conveyance of personal property may be shown. .

A promise by a transferee of property to pay a debt of his transferor need not be in writing, as it is not within the Statute of Frauds.

Appeal by the plaintiff, John Naylor, Jr., from a judgment of the County Court of Sullivan county in favor of the defendant, entered in the office of the clerk of said county on the 7th day of Hay, 1907, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of County Court, and also from an order entered in said clerk’s office on the 5th day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

*John D.*Lyons, for the appellant.

*Carpenter & Rosch*[ *Joseph Rosch*of counsel], for the respondent.

Cochrane, J.:

On February 1,1894, the father of the defendant made and delivered to the-father of the plaintiff a promissory note for the sum of $104.10. The consideration of the note was the purchase price of a wagon; The note has since been assigned to plaintiff.

. It is the theory of the action that subsequently to the delivery of the note the maker thereof transferred his property to the defendant, and that as part of the consideration of said transfer the latter *312assumed the indebtedness of the former, including the aforesaid note.

In the year 1898 the defendant- received from his parents a. conveyance of certain real estate. The consideration as expressed in this conveyance was that he would suitably support them during their lives and suitably bury them when they died.

At the samé time defendant also received a quantity of personal property on the farm and in the house thereon. Such personal ' property included the wagon for which the said note w.as given. There does not seem to have been any bill of sale or other written evidence of the transfer to defendant of such personal property..

In the yeár 1903 defendant also received from his father á conveyance of other real estate. The consideration as expressed in this conveyance was $150 and the assumption of a mortgage on the premises for $320.

It is not an unreasonable inference from the entire case that when the defendant received the said property his father owed debts outside of the said mortgage indebtedness, and that the defendant did not pay or agree to pay any consideration for the personal property or for the first conveyance■ of real estate other than his agreement -to support his parent's unless plaintiff’s contention is correct that the defendant also agreed to pay the indebtedness of his father.

Plaintiff’s father testified that in the year 1900, before he assigned the note to plaintiff, defendant paid the interest then unpaid on said note and $4.10 on the principal,, reducing such principal to $100, and that defendant then told him that he had bought a farm of his father and had agreed with the latter to pay all his debts. By the undisputed evidence of the defendant he had at that time received the first transfer of real estate and said personal property, and he had not paid or agreed to pay anything therefor except for the support and burial of his parents unless his alleged admission to plaintiff that he was ,to pay his father’s indebtedness was true.

A similar admission on the part of defendant to pay his father’s indebtedness as a consideration for receiving his property was proved by another witness.

On such evidence it is quite clear that a question was presented for the jury rather than for the court as to whether defendant as *313part of the consideration of the said transfers to himself had promised his father to pay his indebtedness, including the note in question. The alleged admissions of defendant were denied as was also the fact of the alleged agreement between defendant and his father. But such denials affect merely the weight of the evidence, and such evidence should have been weighed by the jury.

It is true that the deeds do not on their face purport to have been given in consideration of the payment ■ by the defendant of his father’s indebtedness, but it is elementary that the consideration, as expressed in a conveyance, is not conclusive but may be the subject of inquiry. Moreover, the conveyance of the personal property was not in writing, and the consideration thereof has not been stated or explained.

If defendant as a part of the consideration of the various transfers to himself promised to pay this indebtedness it is immaterial whether such promise was written or oral. . It is settled that such a promise is not one to pay the debt of another, but to pay the debt of the promisor, and is not within the Statute of Frauds. *(Kingsbury*v. Earle, 27 Hun, 141; *Reynolds*v. Lawton, 62 id. 596 ; *Mallory*v. *Gillett,*21 N. Y. 412, 433.)

The judgment' and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.