When this case was heard before the general term, upon appeal, on a former occasion, it was held that the plaintiff never was the surety of the defendant, on the note in question. It is claimed, however, upon this occasion, that the Court of Appeals has decided aversely to this view, and therefore that the decision of the general term is not binding. I discover *265no authority which thus holds; and we must therefore assume the law to be as laid down by the court, upon this branch of the case.
The learned judge who wrote the opinion also held that even if the plaintiff was right in his theory that the defendant was discharged from liability by the neglect of Cameron to prosecute the note whe'n the appellant’s principal, Vrooman, was solvent, unless such liability was revived at the interview between the parties related by the witness Marselus, and arrived at the conclusion that there was nothing in that testimony which was calculated to resuscitate the liability of Mann, and that the conclusion of the judge that the suit brought by Watson was defended by Wells by the direction and request of Mann, was not warranted by the facts. Upon the last trial there was some additional evidence upon that subject; but I am inclined to think that it was not enough to establish a valid and binding obligation which created a liability that did not previously exist. The evidence does not establish any positive agreement to indemnify the plaintiff for defending that suit. According to the plaintiff’s own statement of the conversation upon the subject, it was a mere request made under a mistake of Mann as to his liability, if not of both of the parties. If Wells supposed Mann was liable he was entirely wrong, and Mann expressly stated, at the time, that he did understand then that he would leave it with him to do as he thought best; and after being further pressed by Wells, as Wells testifies in opposition to the evidence of Mann and Marselus, Mann told him to go on and defend it. Taking Wells’version of the conversation, differing as it does from Mann and Marselus, I am inclined to think that there is no such material variation between the facts proved upon this and the former trial as would authorize the court to grant a new trial. I have also serious doubts whether a simple request like the one proved, made under an entire misap*266prehension of the rights of the party, to do an act from which, it seems to me, he could derive no sort of benefit, constitutes a lawful contract which is obligatory upon him. The suit was against the plaintiff, and I am not able to discover how Mann’s liability could in any way be affected by the result of it. As Mann was not at all liable, and hence could derive no advantage from the defense interposed by Wells, I think this is not a case where there is such a relationship between the parties as would confer a benefit for the reason that the defense was conducted in part for his advantage, within the principle of the cases to which we have been referred by the plaintiff’s counsel. The defense being of no benefit to Mann, I incline to think that the request alleged to have been made, if it can be considered as a contract, was an independent promise on the part of Mann to answer for the debt of another, which he was not otherwise liable to pay, and not being in writing, was within the statute of frauds.
[Albany General Term, September 16, 1867.If the views which I have expressed are correct, it follows that the judge was right in refusing to submit to the jury the question whether the action brought by Watson was defended by the plaintiff by the direction and at the request of the defendant.
The case having been tried in accordance with the decision and the opinion of the court, it is not necessary to discuss some other questions raised; and a new trial must be denied, with costs.
Miller, Ingalls and Mogeloom, Justices.]