The opinion
By the Court, E. Darwin Smith, J.
In the case of Brewster v. Silence, ( 11 Barb. 144 ,) this court held that when the legislature expressly declared that “ every special promise to answer for the debt, default or miscarriage of another person, should be void unless such agreement, or some note or memorandum thereof expressing the consideration, be in writing and subscribed by the party to be charged therewith,” it must be deemed to have intended precisely what the language used clearly imports, and that a contract of guaranty, .in which' no consideration was expressed, was void. The same view was reasserted in the case of Mallory v. Gillett, ( 23 Barb. 600 .) The case of Brewster v. Silence goes further, and holds that it is immaterial that the original contract, (a promissory note in that instance,) whose performance it was intended to secure by the collateral contract sought to be enforced, and such collateral contract, were made at the same time and on the same piece of paper; and that there was abundant consideration for the original contract.
It was held that the original contract and the guaranty were separate and distinct contracts; and that the latter *490 could not be sustained by reference to the former by force o the consideration therein expressed. This case was in distinct conflict with the whole series of decisions by which the statute has been sought to be evaded, and guaranties and other collateral contracts to answer for the debt, default or miscarriage by other persons, have been sustained and enforced upon the theory of inferring or spelling out a consideration, or supplying the defect by parol evidence, upon principles of construction contravening the letter and plain intent of the statute that one must be expressed in the contract. This case of Brewster v. Silence was affirmed in the court of appeals, (4 Seld. 207,) by a unanimous court; and if there be any virtue in the doctrine of stare decisis, it ought to be deemed settled law, certainly so far as this district is concerned, and all further attempts of the court to evade, and fritter away or nullify this statute, and introduce uncertainty into the law to the infinite mischief of the public, will receive from us no assistance or countenance. It is true that there is some conflict of decision in the court of appeals, on this point. The case of the Union Bank v. Coster, (3 Comst. 204,) is in its facts in principle just like the case of Brewster v. Silence , and just like this case; the contract of guaranty having been made simultaneously with the original contract and upon the same piece of paper. The two cases cannot stand together; but that of Brewster v. Silence is the later one and must be deemed, I think, to overrule the case of The Union Bank v. Coster. It is true that Judge Denio, in Gates v. McKee, (3 Kern. 232,) refers to the decision in the case of The Union Bank v. Coster, as still in full force,- but he obviously overlooked the case of Brewster v. Silence , which at that time, I presume, had not been reported. The case of Gates v. McKee, besides, turned chiefly upon other questions, and there was no occasion particularly to discuss or consider the question of the statute of frauds. We must therefore hold that the decision in Brewster v. Silence is still the law, and if there be any confusion or conflict *491 in the decisions of the court of appeals to that court it must be left to solve the difficulty and reconcile its own decisions.
[Cayuga General Term,
June 6, 1859.
T. R. Strong, Johnson and Smith, Justices.]
This case, upon its facts, is clearly undistinguishable from the case 'of Breioster v. Silence , as the learned referee, in his very careful and able opinion, has clearly shown ; and we cannot, therefore, do otherwise than abide by that case, and affirm the judgment.
Judgment affirmed.