This is an action on an alleged verbal promise made by defendant to plaintiff. Plaintiff was the mortgage creditor of Silliman. The mortgage had been foreclosed and a sale was about to take place. The alleged verbal promise is stated in somewhat varying ways, all substantially alike. “ He said that Mr. Silliman had placed in his hands ferry stock to bid off the property and pay me my full claim if I would postpone the sale for ten days.” “ If I would adjourn *477it ten days he would do so.” “ He stated that Mr. Silliman had put ferry stock into his hands for the purpose of paying for this property, and he would be prepared in the course of about ten days to pay for it.”
The question whether this was an original promise or a promise to pay the debt of another, may be considered in the light of the opinion in Belknap v. Bender (75 N. Y., 446), which comments upon, and somewhat criticizes, the general language used in Mallory v. Gillett (21 N. Y., 412). At page 451 it is said : “ If it (the promise) be made to the creditor, after it has become the duty of the promisor under his arrangement with the debtor to pay, then it is valid.” That is to say if, in the present case, at the time of the alleged promise the defendant had money from the ferry stock which he was bound to apply to plaintiff’s claim, then the promise was valid, because the promisor would have been, at the time, under a legal obligation to pay. And it is further pointed out at page 452 that, in the case then under discussion, the only duty the defendant owed was to convert the property and apply the proceeds upon the debts specified^ Now the present case is quite similar on that point. Supposing that the defendant, at the time of the alleged promise, had the ferry stock “ for the purpose of paying for this property; ” that fact, at the most, would imply only that he was to sell, or otherwise convert, the ferry stock and use the avails to pay the plaintiff’s debt. It does not appear, that he had done so. In fact the contrary appears. If the defendant’s duty, as indicated by the alleged promise, was only to use the ferry stock upon a trust to apply its avails to pay plaintiff’s debt, then he was liable only for the proper discharge of this trust. If in discharging that trust he had, before the time of the alleged promise, received the avails of the stock and had then promised to pay the plaintiff’s claim, he would have been, at the time, under a duty to pay that claim. Hence, his promise to pay it would have been a promise to pay his own debt.
It seems to me, therefore, that under the clear distinction pointed out in that last case there is nothing in the alleged verbal promise, or in the admissions connected with it, which shows that, at the time of making the promise, the defendant was under a present duty to pay anything to the plaintiff. And under that same case the mere possession of property transferred to the defendant by the debtor, *478Billiman, is not enough to make this promise, alleged to have been made by defendant, an original undertaking. The putting of stock into defendant’s hands for the purpose of paying this claim would not make defendant liable to pay it until the avails of the stock had been realized. And till then his verbal promise to pay would be a promise to pay the debt of another. And of course a promise to pay the debt of another must not only have a good consideration but must be in writing.
In this view it may not be necessary to inquire whether the defendant was estopped from proving that he had no ferry stock for any such purpose. This had been shown conclusively by the judgment introduced. And if the defendant were estopped by his .alleged admissions, we should have this condition of affairs, that ■the statute of frauds, declaring void parol promises to pay .the debt •of another, might always be evaded by proof of the promisor’s .admission at the time of -the promise, that he had received moneys from the original debtor. If such an admission, made at the time, 'is to be treated as an estoppel, so as to prevent the promisor from showing that, in fact, he had not received any such money, then the .statute is evaded. A promise, apparently collateral, is conclusively proved to be original, merely by the promisor’s admission at the time that it was an original promise. A plaintiff who wishes to •collect a bad debt out of some party other than the debtor, need ■only prove that the other party, in promising to pay. the debt, admitted that he had received money from the debtor, and then the •defendant is estopped from showing that such was not the fact. I •cannot think that this is a proper application of the doctrine of estoppel.
This alleged promise was perhaps not a promise to pay the debt. A payment of the debt would have discharged the mortgage; and that does not seem to have been tire meaning of the promise. But the promise, as alleged, may perhaps be construed to be a promise to bid the full amount at the sale. Then we have this state of ■affairs. The plaintiff having a lien on the land, and having acquired by his decree a right to sell that land for the payment of his lien, is about to make the sale. The defendant verbally promises (as we assume) to bid a certain amount at such sale. Is not this, if anything, a verbal agreement to purchase land, and therefore void ?
*479In the view taken above it may be unnecessary to decide this point; but it seems to me to have much weight.
I think the judgment should be affirmed, with costs.
Boar dm an, J., concurred.