Opinion
November 15, 1988
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Dillon, P.J., Doerr, Green, Pine and Balio, JJ.
Judgment unanimously affirmed with costs. Memorandum: Subsequent to entry of the order appealed from, a judgment was entered. The judgment subsumed the directives of the order, and the appeal should have been taken from the judgment. We have exercised our discretion to treat the notice of appeal as one from the judgment (CPLR 5520 [c]; Frankel v. Manufacturers Hanover Trust Co., 106 A.D.2d 542).
Defendant's claim that the agreement to indemnify was unenforceable because it violated the Statute of Frauds was properly rejected. Defendant agreed to indemnify the plaintiff for any injury caused by reason of its operations in performing the contract. There was no collateral obligation, and the agreement involved only two parties. Under these circumstances, the promise to indemnify was an original, not collateral, undertaking, and the agreement did not constitute a promise to answer for the debt, default or miscarriage of another within the contemplation of the Statute of Frauds (see, Barr v. Raffe, 97 A.D.2d 696; Braverman v. Metropolis Bowling Centers, 18 A.D.2d 1089; see also, 61 N.Y. Jur 2d, Frauds, Statute of, § 79; 2 Corbin, Contracts § 384).