On the former appeal herein (App. Term, June, 1907) it seems to have been held that plaintiff had a cause of action upon defendant’s undertaking of February 20, 1907, to pay the debts of Fischer & Flannery “to the extent of $15,000 only,” and any other debts of said firm “above the said sum of $15,000 shall be paid by the said Henry Fischer.” The claim of plaintiff against Fischer & Flannery for $258.40 was sufficiently proven. Defendant testified that he had paid out more than $15,000 under his agreement; but on March 13, 1907, he wrote to plaintiff’s attorney as follows:
“Mr. Goldsmith writes me that you have been given the claim of George Griot and Regulus Cigar Co. for collection. Let me say that both were notified to present their bills at No. 63 last Tuesday and get their money. Every other creditor received theirs, except Mr. Fischer’s friend, Fusy Bros.,” etc.
In view of this letter, it'would seem that defendant could not well claim that plaintiff’s demand was not within the $15,000 he had agreed to pay, or at least he ought to have submitted testimony to show in detail the payment by him of bona fide debts of Fischer & Flannery in excess of $15,000.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.