The opinion
E. Darwir Smith, J.
The defendant was at work for Tamblin, and was to receive his board while engaged upon such work. The board was part of the price he was to receive for such work as much as the pecuniary consideration stipulated for in the contract. Confessedly the hired man of the defendant began to board with plaintiff upon the direction and account of said Tamblin. At the end of the first week, the plaintiff informed him that he could board him no longer on Tamblin’s account. The defendant being notified of this fact came the next week to work himself, when the plaintiff testified, “ that he told him he was not disposed to board him or his hired man on Tamblin’s account, and let it run along as some of his board bills had.” Defendant then said, “ he would see it paid; if Tamblin did not pay it he would.”
This is the plaintiff’s own testimony as to the terms of the contract of the defendant. The agreement had a good consideration, and would have been a good contract at common law, but it was obviously one of that class of contracts that must be in writing under the statute of frauds. It was clearly a collateral 'engagement ; the defendant agreed to pay “ if Tamblin did not; ” the defendant undertook as surety for Tamblin; it was, as between him *418 and Tamblin, Tamblin’s duty to pay for the board, but if Tamblin did not, he agreed that he would; Tamblin was the primary, or principal debtor. The parties clearly so understood it, and there is no evidence which warranted the justice in finding any other contract.
The judgment of reversal was put by the county court upon the case of Brown v. Weber, 38 N. Y. 187 , which in principle, I think, was quite like this and required such a decision.
The judgment of the county court should, therefore, be affirmed.
Judgment affirmed.