Opinion
May 4, 1934.
Appeal from Supreme Court of New York County.
Philip J. Nathan of counsel [ Norman Berman with him on the brief; Marx Kahn, attorneys], for the appellant.
William M. Butler, for the respondent.
Present — FINCH, P.J., MERRELL, MARTIN, O'MALLEY and UNTERMYER, JJ.
The agreement alleged in the complaint is not within the Statute of Frauds because it involved the substitution of the liability of the defendant for the liability of his son. This constituted an original undertaking by the defendant. ( Meriden Britannia Co. v. Zingsen, 48 N.Y. 247; Mallory v. Gillett, 21 id. 412.)
The order should be reversed, with twenty dollars costs and disbursements, and the motion granted.
Order reversed, with twenty dollars costs and disbursements, and motion granted.