Opinion of the Court, per WELLES, J.

associations are moneyed corporations does not, therefore, prove that they are subject to the provisions of the 2d title. That they are moneyed corporations, is as well settled as that they are corporations at all; indeed, if they are corporations, there can be no escape from the conclusion that they are moneyed corporations. Then, are they subject to the provisions of the 2d title? This question has been so distinctly answered in the negative, by several recent decisions of this court, that I am relieved from any examination or discussion of it. (Curtis v. Leavitt, 15 N. Y. 9; Leavitt v. Blatchford, 17 Id. 521; International Bank v. Bradley, 19 Id. 245.)

In the case cited from 17 New York, it is held, that associations under the act to authorize the business of banking are not subject to the "regulations to prevent the insolvency of moneyed corporations," &c. (2 R. S. 588), except so far as they have been incorporated into the general banking law of 1838, or expressly applied by subsequent statutes. Judge HARRIS, who delivered the prevailing opinion of the court, reviews the cases in which the question had been considered and passed upon, and concludes his remarks upon the subject as follows: “ Upon the whole, I am satisfied, that the legislature of 1838 intended to introduce a new and independent system of banking, and establish, for the government of institutions. organized under such new system, new and independent regulations, and to leave all previous statutes relating to moneyed corporations to be applied to chartered banks then in existence." In the previous case of Curtis v. Leavitt (15 N. Y. 9), Judge COMSTOCK discusses the ques* 410 ] tion with great ability and clearness, and shows that the provisions of the 2d title of the revised statutes, above referred to, and which is entitled, "Regulations to prevent the insolvency of moneyed corporations, and to secure the rights of their creditors and stockholders," do not apply to associations organized under the general banking law. And in the case of The

Opinion of the Court, per WELLES, J.

International Bank v. Bradley (supra), the same doctrine was distinctly recognised and acted upon. The three cases last mentioned clearly overrule all that had been held or asserted to the contrary in previous cases.

The 4th section of title 4 of chapter 18 of the first part of the revised statutes embraces, in terms, all incorporated companies; but the 11 section of the same title excludes from its operation incorporated libraries, religious corporations, and such moneyed corporations as are subject to the 2d title of the same chapter, leaving all other corporations under its operation. The Hollister Bank, therefore, being an incorporated company, and not subject to the provisions of the 2d title of the chapter referred to, and the transfer of the notes and money in question being in contemplation of insolvency, it follows, that the transfer was void.

The finding of facts by the court before which the cause was tried, as contained in the Case, does not state that the transfer was made in contemplation of insolvency; but the facts distinctly found and stated in the finding are sufficient to require of the court to adjudge, as matter of law, that the transfer was in contemplation of insolvency.

It is contended by the counsel for the defendant, that the 4th section of title 2 does not apply to the present case: 1st. Because the clause of that section relied upon by the plaintiff is applicable only to a general assignment, and not to the payment of any creditor: 2d. Because associations formed under the general banking law are not subject to any provisions of the statutes applica ble to corporations created by special charters: and, lastly, that the Hollister Bank, having paid the two acceptances in question to the defendant (who was the bond fide holder of them for value), before the appointment of the receiver, the *payment (the transfer in question) was valid, and should be permitted to stand. [ * 411

In regard to the first of these reasons, it is sufficient to

Opinion of the Court, per WELLES, J.

say, that the statute referred to forbids any transfer or assignment in contemplation of insolvency. The case is within the letter of the statute, and most clearly within its spirit and policy.

In this connection, the case of Haxtun v. Bishop (3 Wend. 13) is referred to by the defendant's counsel. In that case, the assignment in question was general of all the effects of the Greene County Bank, in trust for the benefit of the creditors of the bank, without preference. The court held the assignment valid, although that was unnecessary to produce the result which was arrived at by the court. I confess my inability to perceive how the case can be regarded an authority for the defendant in this particular connection. It is true, Judge SAVAGE, who delivered the opinion of the court, makes some remarks, which, per- haps, bear on the question, whether the transfer in this case was in contemplation of insolvency; but, upon that question, there seems to have been no point made between these parties. The remarks of Judge SAVAGE are to the effect that an act, to be in contemplation of insolvency, must be done in anticipation of insolvency, that is, in view of a future state of things expected or contemplated to take place after the act is done.

To exclude from the operation of the 4th section of the 4th title, under consideration, transfers and assignments. made in view or contemplation of present existing insolvency of the corporation, would be to deprive it of its most efficacious, practical and useful quality and character. Such, I am persuaded, is not the true construction of the section.

The second reason assigned by the counsel, why the 4th section does not apply to this case, has already been considered,, and shown not to be available.

In respect to the remaining reason in support of the proposition, I can only say, that its force is not perceived. The spirit of the 4th section forbids any parting with its effects by a corporation not excepted from the operation

Statement of the Case.

of the 4th title *by the 11th section of the same [ * 412 title, in contemplation of insolvency, whether existing or anticipated. This case, I think, was within the letter as well as the policy and purview of the statute. The notes and money were transferred by the Hollister Bank, none the less, because they were received by the defendant in payment of the acceptances.

For the foregoing reasons, we are of the opinion, that the order of the general term of the superior court, granting a new trial, should be reversed, and that the judg ment of the special term of the same court should be affirmed.

Judgment reversed, and that of the special term affirmed.

MALLORY v. GILLETT.

Statute of Frauds.—Promise to pay the Debt of another.

The plaintiff had in his possession a caral-boat belonging to A. upon which he had a lien for repairs; at the defendant's request, and on his verbal promise to pay the amount due for such repairs, the plaintiff delivered the boat to A.: held, that the promise was void under the statute of frauds.

Mallory v. Gillett, 23 Barb. 610, affirmed; Fay v. Bell, Lalor 251, overruled.

*APPEAL from the general term of the Supreme Court, in the seventh district, affirming a judg. [* 413 ment entered upon the report of a referee. (Reported below, 23 Barb 610.)

This is the only point decided by the court; the rest of the opinion is mere dictum. Baker v. Dillman, 21 How. Pr. 445, per EMOTT, J. And see Quintard v. De Wolf, 34 Barb. 105.

Opinion of the Court, per COMSTOCK, C. J.

The plaintiff, prior to the 1st July 1854, at the request of one William Haines, had taken the canal-boat, Metropolis, upon his dry-dock, in the town of Corning, and had put repairs upon her to the value of $124.61, for which he had a lien upon the boat, and refused to deliver her without payment. On that day, the defendant promised the plaintiff, verbally, that if he would deliver the boat to Haines, he, the defendant, would pay the amount due for the repairs; and she was accordingly delivered. The defendant paid $50, but subsequently refused to pay the balance. The defence was, the Statute of Frauds. The referee sustained the defence, and the judgment upon his report having been affirmed at general term, this appeal was taken.

Spencer, for the appellant.

Hyde, for the respondent.

COMSTOCK, C. J.-This case ought to be one of first impression. By the statute of frauds, all promises to answer for the debt of a third person are void, unless reduced to writing. One Haines owed the plaintiff a debt for repairs on a boat, for which the latter had a lien on the chattel; in consideration of the relinquishment of that

lien, and of forbearance to sue the original debtor, * 414] the defendant promised the plaintiff, without writing, to pay the debt at a certain future time. There is no pretence, that the defendant's promise was given or accepted as a substitute for the original demand, or that such demand was in any manner extinguished. The promise was, therefore, to answer for the existing and continuing debt of another, or, in the language of the books, it was a collateral promise. The consideration was perfect, but as there was no writing, the case seems to fall within the very terms of the statute.

Authorities need not be cited, to prove that the suffi