(concu/rri/ng).—The referee has found, upon conflicting evidence, the facts establishing plaintiffs’ right to recover; and, unless the exceptions taken by the defendant be sustained by authority, the judgment must be affirmed.
The first proposition is that the evidence at most shows but a parol promise to pay the debt of another, which is void by the statute of frauds
If this were the only conclusion that could be drawn from the testimony, the defendant was entitled to a nonsuit; for it is well settled that a parol agreement, made by a third person with the creditor to pay the debt of another, is void; and upon this point the cases cited "by appellants’ counsel are conclusive.
The seventh finding of fact (and there was evidence to support it) is as follows:
“ That the defendants Euell & Semmler, in consideration of receiving all the assets of the late firm of Greiff & Semmler, agreed and promised to each other, at the time of the formation of the new firm of Euell & Semmler, to discharge and pay off all the debts of the late firm of Greiff & Semmler, including the claim of the plaintiffs in this action.” ■
It’ would- thus appear that the promise upon which the plaintiffs rely, and which was- adjudged to have been proved, was not within the statute. It was made by Euell with the debtor, his copartner and co-defendant, to pay the debt owir.g by the latter to his creditors the plaintiffs.
*38It is therefore within the class of excepted cases to which the statute does not apply (Lawrence agt. Fox, 20 N. Y., 268; Burr agt. Beers, 24 ib., 178; Van Schaich agt. Third Ave. R. R. Co., 38 ib., 346; Secor agt. Lord, 3 Keys, 525; Parker agt. Bucklin, 2 Den., 45; Delaware and Hudson Canal Co. agt. The Westchester County Bank, 4 ib., 97; Farley agt. Cleveland, 4 Com., 432, affirmed 9 ib., 639; Scott agt. Pilkington, 15 Abb., 280).
I have examined all the other exceptions, and am of opinion that they are not well taken.
The judgment should be affirmed, with costs.