Dissenting opinion of BACON, J.

upon the ground that the plaintiff gave up what was claimed to be a valid lien, and the defendant derived a benefit from the surrender, by obtaining the property. It is not a case proceeding upon the simple ground of a lien surrendered; although, if that had been the only feature presented, I think it clear, the verdict would have been sustained.

The case of Mercein v. Mark (10 Wend. 461) presented the precise point. The plaintiff had a levy by virtue of an execution upon the property of one Reed; and one of the defendants agreed that, in consideration of the release of the levy, the defendants would pay the plaintiff $150, at the expiration of some eighty days, or give their note for that amount. The judge, at the trial, ruled that a promise founded upon the consideration of surrendering up property levied on by execution, is an original undertaking and need not be in writing; and on the other ground, of the partnership liability, he left it to the jury to say, upon the evidence, whether the firm was bound by what had been shown upon that point. A new trial was granted for a misdirection of the court upon this * 446 ] branch of the *case; but upon the other, Chief Justice SAVAGE stated that the ruling was right, and that a promise made upon such a consideration as appeared in the case, was not within the statute of frauds. In reference to this case, it is said, in the able opinion of the supreme court given in the present case, at the general term, that what was said by Judge SAYAGE in his decision on this point was entirely obiter, and that he cited no authority to support his conclusion. I cannot agree with the learned justice who gave the opinion, on this point; so far from the remark being obiter, the precise question was presented. If the ruling at the circuit had been wrong, that would have been an end of the case, and a new trial would have been, perhaps, unnecessary on the other ground. If, however, it was to be sent back, it was equally necessary to determine the

Dissenting opinia of BACON, J.

other question, which was vital to the maintenance of the action itself; and as to the remark that no authority was cited, the chief justice probably deemed that the doctrine had been so often and well settled as to have become almost elementary and requiring no array of cases to sustain it.

Indeed, so well had the rule been established, that in the case of Smith v. Weed (20 Wend. 184), the point was not even raised by the counsel on the argument. It presented the case of a naked parol promise of a third person to pay the debt to the plaintiff, in consideration of the release of an attachment which the plaintiff had levied on the property of his debtor; and the court held, without any hesitation, that the lien was valid, and the release thereof constituted a sufficient consideration for the undertaking of the defendant to pay the debt. Being an original promise, it was, of course, not within the

statute.

The last case which has arisen in our courts where this precise question has been presented, is Fay v. Bell (Lalor 251). The decision is brief, but emphatic, and is given by an able and eminent judge, who, until his recent lamented decease, continued with intellectual vigor unimpaired, and "natural force" almost unabated, by his large learning and ripened experience, to enlighten the tribunal over which he once presided. The facts [* 447 were briefly these: One Daharch had employed the plaintiff to mend a pair of boots; the work had been done, and the boots remained in the posssession of the plaintiff, and he had, of course, a lien for the amount of his charge; upon the promise of the defendant to pay the demand, the boots were delivered to Daharch. There was a recovery, and on appeal, it was insisted, that the promise was within the statute of frauds; but the court held otherwise. BEARDSLEY, J., who gave the decision, enters upon no argument to vindicate it; he simply says: "It was a new undertaking, founded on a new and dis

Dissenting opinion of BACON, J.

tinct consideration, to wit, the relinquishment by the plaintiff of his lien on the boots, and which was sufficient to uphold the promise made; it was not within the statute of frauds." He then adds the authorities, some ten or twelve in number, among which are several we have particularly considered. Here, then, is an opinion not obiter-not unsustained, but fortified by authority, and presenting a state of facts absolutely identical with the case now before us. The decision has never been questioned or doubted by any succeeding case; and I propose to abide by it, as a clearly-expressed, well-considered and authoritative exposition of the law, and which determines the present case in favor of the plaintiff. Whatever we might be disposed to say of this as an original question (and were I at liberty to view it as such, I confess, I should find difficulty in so construing the language of the statute as to exempt these cases from its operation), I think, the current of authority has too long and steadily set in one direction, to be now turned aside, and that the rule stands too firmly, not only "super antiquas," but "super novas vias," to be disturbed.

I need scarcely add, that the cases of Barker v. Bucklin (2 Denio 45), and Brewster v. Silence (8 N. Y. 207), to which we have been referred by the defendant's counsel, hold no doctrine whatever inconsistent with the great "cloud of witnesses" that have been summoned to the stand. The former case was where property had been sold to the defendant, in consideration of which he prom

* 448]

to

ised to pay the debt of the party delivering the *property, to the plaintiff. It was not a promise pay the debt of a third party merely, but was, in ef fect, an agreement to pay the defendant's own debt. The case was rightly decided upon all the authorities, and it was unnecessary to go beyond this simple and plain proposition to uphold the recovery. The case of Brewster v. Silence is purely that of a naked written guarantee to pay another's debt, expressing no consideration. The

Dissenting opinion of BACON, J.

court held that the consideration could not be supplied by parol proof. There was no pretence that, in consideration of the undertaking, any lien was surrendered or right relinquished, which the plaintiff held, and which was operative in his hands. Some evidence was attempted to be given on the trial, that the property was placed in the hands of the defendant, on which fact his undertaking was founded; but the court of appeals held, that this was not only outside of the issue, but that the evidence given did not conduce to prove the point sought to be established. This case also finally settled the doctrine which had been floating loosely through the reports, that a guarantee could not be changed into a promissory note, so as to charge the party by some other contract than the one he had in fact entered into; but beyond this, and the other proposition that a guarantee which does not express the consideration is void under the statute of frauds,. the case is not to be invoked as authority. The decision, is not, therefore, in conflict with the rule which is to be. applied to this case, which is controlling upon the question before us.

My opinion is, that the judgment should be reversed,. and a new trial granted, with costs to abide the event.

DAVIES and WRIGHT, JJ., also dissented.

Judgment affirmed.

Statement of the Case.

OSWEGO STARCH FACTORY v. DOLLOWAY et al.

Taxation of Corporations.

For the purpose of taxation, the location of a manufacturing company is the place designated in its certificate of incorporation as that where the operations of the company are to be carried on; though its principal office be located elsewhere.

Under the act of 1857, c. 456, the stock of a corporation, for the purpose of taxation, is to be assessed at its actual value.

APPEAL from the general term of the Supreme Court, in the fifth district, where a judgment in favor of the defendants, entered upon the report of a referee, had been affirmed.

This was an action against the assessors of the city of Oswego for an illegal and excessive taxation of the plaintiff's capital-stock, for the non-payment of which its property had been sold by the collector.

The plaintiff was a manufacturing company, organized under the act of 1848, c. 40, for the purpose of carrying on the manufacture of starch, in the city of Oswego. Its certificate of incorporation provided, that "the operations of the said company shall be carried on, in the city of Oswego." Its factory was there erected, in which it em* 450 1 ployed about 300 hands. *Four of the trustees, ] however, resided at Auburn, in Cayuga county; and its president, treasurer and secretary also there resident, and kept an office, rented by the company, for the transaction of its principal financial business. The company had no surplus or reserved funds, but made annual dividends of all its profits, amounting to fifteen per cent. and upwards; and the defendants assessed its capital stock at a valuation of seventy-five per cent. above par.