Misc.] Supreme Court, Appellate Term, July, 1900. their contract of suretyship, they are privy to proceedings against their principal, and when he is concluded, they, in the absence of fraud or collusion, are concluded also. Casoni v. Jerome, 58 N. Y. 315; Douglass v. Ferris, 138 id. 192. It is only in cases in which the accounting is founded upon the guardian's petition that it is necessary to cite his sureties. Code Civ. Pro., § 2849. There is nothing in the case to suggest fraud or collusion in the procurement of the decree. The facts upon which the defendants Bryant and Van Riper sought to escape responsibility were before the Appellate Division in Otto v. Van Riper, 31 App. Div. 278, and their liability was determined. That decision is conclusive of the question, so far as this court is concerned. There was nothing in the several orders made by the surrogate after the entry of the decree which affected its binding force upon the defendants. They were permitted to come in and file objections to the guardian's account, but such permission did not modify or vacate the decree. The objections they did file, even if true, did not tend to reduce in any way the amount to be found due from the guardian to the plaintiff, but merely suggested reasons why they, the bondsmen, should not be required to make good the amount. No such question was before the surrogate on the accounting. The sole issue before him was as to the amount which the guardian owed to his ward. The question as to the liability of the sureties for the amount so found due, could be determined only in an action upon the bond. Hence the order of March 5, 1896, referred to in the case, but not printed, which apparently undertook to determine the question of the sureties' liability, would have been ineffectual to protect them, even if it had not subsequently been vacated by the surrogate by the order of April 6, 1896. Our conclusion is that the decree of September 26, 1895, stating the account of John H. Schilling the guardian, and determining the amount due from him to the plaintiff was conclusive upon the defendants Bryant and Van Riper, his sureties, as to the amount due to the plaintiff, and that the reasons urged upon us why they should be relieved of liability are invalid. The judgment must, therefore, be affirmed, with costs. Present: TRUAX, P. J., ScorT and DUGRO, JJ. Judgment affirmed, with costs. Supreme Court, Appellate Term, July, 1900. [Vol. 32. GEORGE COHEN, Respondent, v. BERNARD WEILL, Sued herein as Benjamin, the name Benjamin being fictitious, etc., Appellant. (Supreme Court, Appellate Term, July, 1900.) Justice cannot require 1. Municipal Court of the city of New York A justice of the Municipal Court of the city of New York has no power to direct a plaintiff to furnish him with a copy of the stenographer's minutes of the trial and include the expense, as a part of the costs, in a judgment subsequently rendered in favor of the plaintiff. 2. Same Jurisdiction lost by failure to decide in eight days flict as to time of decision. Con Although the return of such a justice states that he rendered judgment within eight days from the time when the case was finally submitted to him, where the record clearly shows that he could not have done so, it must be considered that the return is incorrect and that he had lost jurisdiction by the delay. APPEAL from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan. John P. Donnelly, for appellant. Hyman Levy, for respondent. SCOTT, J. After this action had been tried and submitted to the justice, he made an order directing the plaintiff to furnish to the court the stenographer's minutes taken on the trial of the action. He afterwards allowed to the plaintiff, and included in the judgment as part of the costs, the sum of thirty-five dollars and eighty cents, being the amount said to have been paid by the plaintiff for the copy of the minutes. There is no provision of law justifying this practice. If this was the only defect in the judgment, full justice could be done by modifying it. There appear to be others, however. It appears from the record before us that the cause was tried and submitted to the justice on January 30, 1900. The indorsement of judgment made by the justice Misc.] Supreme Court, Appellate Term, July, 1900. upon the original summons, and signed by him, bears date February 13, 1900, more than eight days after the submission of the cause. It is evident that the judgment could not have been rendered before February thirteenth, because it includes the sum paid, as already stated for the stenographer's minutes, and these were not allowed, as appears by the indorsement of the justice upon the bill of costs, until February thirteenth. Furthermore the undertaking on appeal, which was approved by the justice, recites that the judgment was rendered on February thirteenth. It is true that, in the statement attached to the return, the justice states that he rendered judgment on February sixth. This, however, is clearly a mistake or an inadvertence. The return to this court consists, not only of the statement of the justice as to the course of this litigation, but also of the original records returned by him. We are, of course, bound to accept the return as true, but when, as in the present instance, the return taken together contains two statements apparently contradictory, one of which is clearly erroneous and apparently the result of an oversight, we may disregard it, and determine the appeal upon the fact as it is shown to be by the convincing evidence of the original record. It follows that the justice, not having rendered judgment within eight days after the submission of the case to him, lost jurisdiction to render judg ment at all. The judgment appealed from must be reversed, with costs. TRUAX, P. J., and DUGRO, J., concur. Judgment reversed, with costs. EDMUND T. OLDHAM, Appellant, v. FREDERICK S. PINKUS, Respondent. (Supreme Court, Appellate Term, July, 1900.) 1. Statute of Frauds Original promise A consideration must move to the promisor and be beneficial to him. A verbal promise of an employer, made to a creditor of his em ployee, to the effect that he would deduct monthly a certain sum from the salary of the employee so long as he was employed and pay it to the creditor upon his claim, accompanied by a verbal agree Supreme Court, Appellate Term, July, 1900. [Vol. 32. ment that the creditor would accept half the debt if paid within a month, is not enforcible against the employer as an original promise, for no consideration, beneficial to him, has moved to him from either the creditor or the debtor. Where the creditor also relies upon an unsigned memorandum of the said contract and upon a letter of the employer to him acknowledging that the memorandum correctly stated the points of settlement and the manner of payment thereof ", the creditor cannot recover thereunder where it is apparent, from the evidence, that the memorandum does not state all the material terms of the contract. APPEAL from a judgment in favor of the defendant rendered in the Municipal Court of the city of New York, first district, borough of Manhattan. Edmund T. Oldham, appellant in person. Miller & Hartcorn, for respondent. Per Curiam. The appellant had a claim for professional ser vices against one Drysdale, who was in the employ of the respondcnt. In January, 1900, the appellant called upon the respondent, and an agreement was arrived at which is set forth in the complaint. The allegation is that, in consideration of an agreement by appellant to forbear taking any proceedings upon his claim against Drysdale which would interfere with his employment by Pinkus, the latter agreed with the appellant for the payment of the claim, the agreement being made, as is said, with the approval of Drysdale. Up to this point, as will be seen, the complaint does not allege any agreement by the respondent that he would pay the claim, but merely an agreement for the payment of the claim — by whom it was to be paid not being specified. The complaint, however, goes on to state that the appellant himself prepared and sent to the respondent a letter to be signed by him, reciting the terms of the aforesaid agreement. The appellant certainly cannot claim that his verbal agreement with the respondent was any more favorable to him than is disclosed by the letter which he himself wrote. This letter, which was addressed to the appellant and in Misc.] Supreme Court, Appellate Term, July, 1900. "With tended to be signed by the respondent, read as follows: the understanding that this firm is in nowise responsible for Mr. Drysdale's indebtedness to you. As Mr. Drysdale has consented to the arrangement we will so long as he is employed by us pay to you or your order twenty dollars on the first day of each month, to be credited by you on account of your claim against him, and we will charge the same to Mr. Drysdale monthly. This arrangement is on the condition that if Mr. Drysdale will at any time during the current month pay you one half of your claim, to wit, $166.54, you will accept and receive the amount in full payment of your claim against him." This letter the respondent refused to sign, but wrote to the appellant in reference thereto as follows: "I have received your letter of the 12th inst., and while I acknowledge the correctness of your proposition as embodying the points of settlement and the manner of payment thereof, still, I hesitate to put my name to such a document, because it is entirely negative, and, therefore, ultimately useless." The respondent claims that the alleged agreement was without consideration, and void under the Statute of Frauds. It is obvious that the respondent did not accept the indebtedness as his own, and agree to pay it upon that basis. The very first sentence in the letter drawn by the appellant, as expressing the agreement, negatives such a proposition. Evidently the agreement was that twenty dollars a month was to be paid out of the salary to be earned by Drysdale; in other words, the respondent was to keep back, out of money belonging to Drysdale, the stipulated amount, and pay it over to the appellant for Drysdale's account and as part payment of Drysdale's debt. At the time of the respondent's alleged promise to pay Drysdale's debt he was under no present duty to do so, and if he is to be held upon his promise, not only must it be in writing, to comply with the Statute of Frauds, but, whether treated as an assumption of the debt or as a promise to pay the debt of another, it must rest upon a sufficient consideration. That consideration must be one moving to the promisor (in this case the respondent), either from the creditor or the debtor. It must be beneficial to the promisor. Ackley v. Parmenter, 98 N. Y. 422, 433. In the present case there does not seem to have been any consideration moving to the respondent. True, the unsigned letter states that the agreement was made upon condition that the |