Assuming the testimony of John Roller to be true, it at most establishes the fact that the defendant promised orally to pay a part of a subsisting debt, then due from Louis Wunsch, his brother, to Charles Duffy, if Duffy would discontinue a suit commenced for its recovery, and that the condition was fulfilled. It is, in fact, a special promise by him to answer for the debt of his brother, and conceding that the discontinuance of the action was a sufficient consideration for the promise, it was, nevertheless, void under the statute of frauds, which declares that every special *Page 246 promise to answer for the debt, default or miscarriage of another person shall be void, unless the agreement, or some note or memorandum thereof, expressing the consideration, be in writing, subscribed by the party to be charged therewith. The promise was not made or accepted in the place or as a substitute of the original debt, or in extinguishment thereof; on the contrary, Louis Wunsch continued liable for the amount or balance thereof, which the defendant agreed to pay. I see no ground on which the defendant can be held liable on the promise, and give effect to the statute, and the case of Mallory v. Gillett (21 N Y Rep., 412) is a conclusive authority against the plaintiff's right of recovery.
The judgment of the court below must be reversed with costs.
All concur for reversal.
Judgment reversed.