De Witt C. Becker and William J. Skillicorn, as Surviving Members of the Firm of David Bradt, Becker & Co., Respondents, v. John Krank and John L. Mynderse, Appellants

De Witt C. Becker and William J. Skillicorn, as Surviving Members of the Firm of David Bradt, Becker & Co., Respondents, v. John Krank and John L. Mynderse, Appellants. Statute of Wrauds—evidence that the consideration of an obligation to pay another&■ debt was a chattel mortgage given by the debtor is incompetent under a complaint alleging the consideration to be the refraining from entering a judgment against the debtor. The complaint in an action brought by the survivors of the firm of Bradt, Becker & Co. against John Krank and John L. Mynderse to recover on the following instrument: “Schenectady, N. Y., August 11, 1897. “ We, the undersigned, John Krank and John L. Mynderse, hereby agree to-pay David Bradt, Becker & Co. a bill of two hundred and sixty-five dollars and. fifty cents ($265.50) against Church & Jones between now and Tuesday next week. ' . “(Signed) JOHN KRANK. “JOHN L. MYNDERSE.” alleged that the consideration for the instrument was an agreement by Bradt, Becker & Co. to refrain from entering a judgment which they had obtained against Church & Jones and to discontinue the action. Held, that it was error to allow the plaintiffs, for the purpose of taking the agreement out of the Statute of Frauds, to prove that Krank and Mynderse had received from Church & Jones a chattel mortgage, running to Mynderse only, to secure or indemnify them against the liability created by the instrument sued upon. Qumre, whether such evidence, if admissible, would take the instrument sued upon out of the Statute of Frauds. Appeal by the defendants, John Krank and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered . in the office of the clerk of the county of Albany on the 18th day of February, 1902, upon the verdict of a jury rendered by direction of the court. Jd. J. Cooper and Fra/nk Cooper, for the appellants. John A: Delehanty, for the respondents. [MAJORITY — Fursman, J.] Fursman, J. The plaintiffs are the survivors of Bradt, Becker & Co. Bradt is dead. On the 11th of August, 1897, the defendants executed and delivered.to Bradt, Becker & Co. a writing in these words: “ Schenectady, N. Y., August 11, 1897, “ We, the undersigned, John Krank and John L. Mynderse, hereby agree to pay David Bradt, Becker & Co. a bill of two hundred and sixty-five dollars and fifty cents ($265.50) against Church & Jones between now and Tuesday next week. “ (Signed) JOHN KRANK. “ JOHN L. MYNDERSE.” The action has been three times tried. On the first trial this paper was treated as a promissory note and a verdict was directed for the plaintiffs. From the judgment entered thereon an appeal was taken to the Appellate Division of the third department, where the judgment was .affirmed by a divided court. On appeal to the Court of Appeals the judgment was reversed, that court holding that the paper was not a promissory note and that the recovery was not in conformity with the complaint. That court, however, refused to decide whether the terms of the instrument were sufficient under the Statute of Frauds. (Bradt v. Krank, 164 N. Y. 515.) On the second trial the case was presented on the theory that the paper was a wi’itten promise to j>ay, based upon a valuable consideration. The consideration proved was that plaintiffs had obtained a judgment against Church and Jones, and in consideration of the giving ■ of this instrument by the defendants had agreed to withhold the entry thereof and to discontinue that action. The trial court again directed a verdict for the plaintiffs, and from the judgment entered thereon an appeal was taken to this court, where the judgment was reversed. (Beaker v. Krank, 62 App. Div. 514.) That decision is placed upon the ground that the contract between the parties was executory; that the writing does not express the entire agreement, and for this reason is insufficient under the statute. - On the third trial some new evidence was given, and the trial court again directed a verdict for the plaintiffs. From the judgment entered thereon this appeal is taken. The respondents insist that this new evidence shows that the defendants had been indemnified by Church and Jones against their liability expressed in this writing, and that the promise contained in the writing is not, therefore, within the statute. The claim of the plaintiffs is that the new evidence establishes that Church and Jones gave to the defendant Mynderse a chattel mortgage, with the knowledge and consent of Krank, to secure the defendants, among other things, against the payment to the plaintiffs of their debt to them. The chattel mortgage ran to Mynderse only as mortgagee, and not to Mynderse and Krank, the defendants, and on its face was given to secure him “for moneys advanced” and “for goods sold and delivered.” It appears that Church and Jones owed Mynderse about $800. Church (the new witness) testified in substance that the mortgage was to secure this debt, and for indorsements, and also that the claim of the plaintiffs was included in it. I think this evidence was not admissible under the complaint. The complaint sets out the paper given by defendants, and alleges that the consideration for it was an agreement by plaintiffs to withhold entry of the judgment they had obtained against Church and Jones, and to discontinue the action. The tenor of the complaint is that the defendants gave a written promise to pay the debt of Church and Jones to them, which was supported by the consideration stated. As alleged, this was a mere promise to answer for the debt of another, and as the. writing does not contain the whole agreement the promise is void. There is no hint in the complaint that the defendants had received anything from Church and Jones, either by a transfer of property or by way of security or indemnity, so as to convert the writing, which, on the face of the complaint, is a collateral undertaking to answer for the debt of another, into a promise of defendants to pay their debt to Church and Jones by paying the debt of Church and J ones to the plaintiffs. It is a settled rule that recovery must be had, if at all, according to the allegations of the complaint. (Day v. Town of New Lots, 107 N. Y. 148, 154; Wright v. Delafield, 25 id. 266.) It was said by Judge Earl in Southwick v. First National Bank (61 How. Pr. 170) that “ pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action' and then recover' upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.” (See Romeyn v. Sickles, 108 N. Y. 650.) The evidence was objected to as inadmissible under the pleadings. I think the objection was well taken, and that the court erred in admitting it. But assuming that the evidence was admissible under the complaint, I do not think it sufficient to establish the writing as an original promise. The cases relied on by the plaintiff’s counsel (First National Bank v. Chalmers, 144 N. Y. 432, and kindred cases cited, upon the points), simply confirm the long established rule that where a debtor transfers property to a third person in consideration of his agreement to assume and pay the debt, and he thereupon promises the creditor to pay, he makes the debt his own. Ho case is cited, nor have I been able to find any, holding that a mere security by way of mortgage or otherwise given to indemnify one who promises to pay the debt of another in case he does pay it makes such promise an original undertaking between the . creditor and promisor, so as to take the case out of the Statute of Frauds. And that is all that can be said of this chattel mortgage. It was at most a mere security by which the defendants could indemnify themselves in case they were compelled to pay, or did voluntarily pay the debt of Church and Jones to the plaintiffs. The plaintiffs were not patties tc( the instrument, nor was it made for their benefit. (Root v. Wright, 84 N. Y. 72.) If the defendants had paid the plaintiffs they might have resorted to the mortgage for their indemnity, but having refused to pay, their liability is to the mortgagors only, and is purely personal. (Cole v. Cole, 110 N. Y. 630, 632. See, also, Roe. v. Barker, 82 id. 435.) The judgment must be reversed and a new trial granted, with costs to the appellants to abide the event. All concurred, Parker, P. J., in result. ' Judgment reversed on law and facts and new trial granted, with costs to appellants to abide event. ' . ,