Opinion
July Term, 1901.
Elisha W. McGuire, for the appellant.
Jesse Stearns, for the respondent.
The plaintiff, as executrix of the last will of her husband, held an overdue mortgage of $3,000 on the premises at 83 Gold street, Brooklyn. The defendant held a second mortgage on the same premises, the title to which premises was held by one Haskell for the benefit of the bank. There were unpaid taxes on the premises. The plaintiff alleges that the defendant, in consideration that the plaintiff would delay foreclosure, promised to pay the taxes; that she did delay until after the defendant refused to fulfill its promise, and that on a subsequent foreclosure there was a deficiency of $261.
The promise to pay is contained in correspondence and conversation between the parties, Cooke acting at the request of the plaintiff, as follows:
"DEAR SIR. — I have been looking for a letter from you regarding the payment of taxes on No. 83 Gold st., Hall property. Kindly advise me your decision regarding the matter.
"Yours, etc., "J.H. COOKE."
The answer from Smith, the vice-president and cashier of the defendant, was as follows:
"BEDFORD BANK, BROOKLYN, N.Y., Jany. 22, 1900.
Mr. J.H. COOK, 156 Hooper St.,
"DEAR SIR. — Reply to yours of 20th. The delay is occasioned by the statement of Mr. Hall that he has an offer for the Gold street house and expects to close it. If it is not sold we will pay the taxes. Mr. Hall was here on the matter this A.M. hopes to have taxes assumed. I am sure the matter will be settled this week.
"Yours Resp., "H.M. SMITH."
About the same time Cooke had a conversation with Smith over the telephone, as shown in the following:
"The Court: What did he say; give us the conversation. A. I said we can't wait any longer for the payment of these taxes; we have to commence our action; he said he would like to have us wait a few days; that they were then negotiating the sale of this property, and that it would be cleared up that week; and if we would wait he would see that the taxes were paid, and I agreed to wait."
The court dismissed the complaint, but the justice's return does not show on what ground; whether because there was no contract or because the contract was void under the Statute of Frauds. If the latter, there must have been a contract, for the plea of the Statute of Frauds presumes the existence of a contract which except for the statute would be valid.
It does not seem to me that this is a case within that part of the Statute of Frauds which requires a contract to pay the debt of another to be in writing. The bank had a mortgage on the property, and in addition to this the title was held by Haskell for its benefit and in its stead. It is true that the bank was not indebted to the city for the taxes in the sense that it would have been indebted upon a written contract, or that an action could have been brought against it by the city to recover the amount of the tax. No more was the tax the debt of the former owner. Hence the debt was not the debt of another, and the Statute of Frauds has no application to the situation.
The plaintiff had a present right to commence her action for foreclosure. On the promise of the bank to pay the taxes the foreclosure was delayed. It is well settled that a valid agreement for delay in the enforcement of a debt is a sufficient consideration for a promise to pay the debt. ( Cary v. White, 52 N.Y. 138.)
The evidence was sufficient to require a submission to the jury of the question whether there was a promise to pay the taxes and whether in view of that promise the foreclosure was delayed; and it was, therefore, error to dismiss the complaint.
The judgment should be reversed.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.