majority">By the Court, Emott, J.

When this ■ case was before us on a previous occasion, we held that if the plaintiff abandoned and put an end to his original agreement made with Gardiner or De Wolf, Starr & Co. to construct the machinery for the price of which this suit was brought, and was then employed by the .defendant to proceed and finish—'the promise of the defendant made under such circumstances was not within the statute of frauds. At the second trial the jury were instructed in conformity with the rule thus indicated. The only material exceptions in the case were taken to these *104instructions, and thus the only question now really before us is, whether our former decision was correct.

We should not have listened to an argument upon such a question, had it not been stated that the court of appeals in a recent case had overruled the doctrine which we recognized, and upon which the cause was tried. We were referred on the argument to the case of Mallory v. Gillett, (21 N. Y. R. 412.) In that case the court of appeals affirmed the judgment which had been given in this court and which is reported in 23 jBarb. 610. The latter decision in the supreme court was cited by me in delivering the opinion in this case, and was not supjtosed to be, nor do I now see that it is,'at all in conflict with the opinion. The point which the decision covers is contained in the first paragraph of the leading opinion in the court of apj)eals. “ One Haines,” says Judge Com-stock, “owed the plaintiff a debt for repairs on a boat, for which the latter had a lien on the chattel. In consideration of the relinquishment of that lien, and forbearance to sue the original debtor, the defendant promised the plaintiff, without writing, to -pay the debt at a future time. There is no pretense that the defendant’s promise was given or accepted as a substitute for the original demand, or that such demand was in any manner extinguished. The promise was, therefore, to answer for the existing and continuing debt of another ; or in the language of the books, it was a collateral promise. The consideration was perfect, but as there was no writing the case seems to fall within the very terms of the statute.”

In the present case the judge charged the jury that if the plaintiff constructed the machinery for some other person than the defendant, or if, by an understanding among the parties, he was to become responsible for machinery which was building for Gardiner or Steadman, he was not responsible. He also charged that if after De Wolf, Starr & Co. had refused to pay for the work by giving their acceptances, and the plaintiff 'refused to go on with the work, the defendant *105promised to pay for it, if lie would complete it, the defendant was liable for the price. It will be observed that Steadman, who was to receive the machine, did not appear personally in the transaction at all. It might have been a question whether Gardiner or De Wolf, Starr & Co. were the persons originally and directly responsible for the machinery. It is not very material, however, if the original contractor, whoever he was, was discharged, and the contract terminated. The defendant’s counsel asked the judge to instruct the jury that this was not the case, but that Gardiner continued from first to last liable to Quintard for the machinery. This was correctly refused, for it was asking a positive instruction as to what was, in the most favorable view for the defendant, a disputed question of fact. If the judge had been asked to say to the jury that if Gardiner was and continued all the time from first to last liable to Quintard for the machine, then the defendant was not liable, no doubt he would have so stated, for that is the import of his whole charge. The material fact insisted upon in the opinion already delivered, and' with reference to which the case was tried the second time, was that the first contract was rescinded and terminated for all purposes, and therefore the agreement upon which the action was brought was not collateral but independent and original.

[Dutchess General Term,May 13, 1861.

I have read with great interest the learned and ingenious review and classification of the cases upon this part of the statute of frauds, which forms the conclusion of Judge Com-stock’s opinion in Mallory v. Gillett, but I have not found in his reasoning any thing inconsistent with the views already deliberately expressed by this court. It would be sufficient, for us to stand by what we have decided, that the judgment in Mallory v. Gillett is not in conflict with it; but it is satisfactory to find that the most acute and exhausting discussion of the subject discloses nothing inconsistent with our viewsi

The judgment must be affirmed, with costs.

Emott, Brown and Scrugham, Justices.]

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