¶1I do not think this is a case in which the Statute of Frauds applies. It is not the case of special promise to pay the debt of another.
¶2It is the case of an original promise by the defendant to pay his own debt incurred in purchasing- a business.
¶3Following the doctrine of Lawrence v. Fox, 20 N. Y. 268, it is immaterial whether the consideration which the defendant promised to pay for the business was to be paid to the person from whom the business was bought by him or to a third person, in this case the plaintiff in this action.
¶4Even if this view of the case were not correct, the Statute of Frauds would not be available to the defendant, for the reason that he has not pleaded the defense. Crane v. Powell, 139 N. Y. 379.
¶5Furthermore, I think the written instrument proved was sufficient to take the promise beyond the statute; that a consideration appears expressed in the instrument, and that there was sufficient legal evidence before the justice to warrant him in finding that the sale of the business referred to and the execution of the writing were, if not simultaneous, parts of one transaction.
¶6The judgment should be affirmed.
¶7Judgment affirmed;