
    John W. Van Dyke, App’lt, v. George D. Clark, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1892.)
    
    1. Statute of frauds—Contract for service of stallion.
    A contract for the services of a stallion, by which its owner is to take in payment a colt, to be chosen by him from among those raised from the mares served, such choice to be made when they are four months old, is void under the statute of frauds, as an agreement not to be performed within a year.
    
      2. Same.
    In such case the remedy of the owner of the stallion is on quantum meruit for its services.
    3. Same—Pleading.
    In an action of replevin it is not necessary for defendant to plead the statute of frauds in order to avail himself of it on the trial.
    Appeal from a judgment of the Essex county court,reversing the judgment of a justice of the peace in an action to recover a chattel
    The plaintiff, Van Dyke, owned a stud-horse, and the defendant some breeding mares. After the defendant had declined having the services of the stallion, saying that he would not pay such prices as were asked, it was shown on the part of the plaintiff that it was then orally agreed between the parties on the 3d day of May, 1885, that the plaintiff should serve six of the defendant’s mares to plaintiff’s stallion, and as pay for the services of said stallion the said plaintiff was to have his choice of the colts raised from the six mares, that choice to be made by the plaintiff when the colts were four months old, and all mares not proving with colt were to be re-served to plaintiff's stallion the next year or season without making any charge therefor, the mares and colts to remain in the possession of the defendant until the plaintiff made his choice in the colts when four months old, as agreed upon. This was the agreement as testified to by the witnesses on the part of the plaintiff, and by virtue of which he claimed title to the property in question.
    On the above terms, it is claimed on the part of the plaintiff, that the six mares were served to the stallion at different times during the season of 1885, as follows: One May 3d, one May 19th, one May 20th, one May 22d, and one June 20th, and tliiat the following May and June, 1886, three of the mar’es had colts, and the others had none, the colt in question being foaled May 17,1886.
    When the colt in question was four months old, or just before the action was commenced in November, .1886, the plaintiff notified defendant of his choice in the colts, and demanded the same, which the defendant refused to deliver, and the plaintiff then brings this action in replevin.
    
      Robert Dornborough, for app’lt; John H. Cunningham, for resp’t.
   Putnam, J.

I think the contract under which plaintiff claims title to the colt in suit was, within the statute of frauds, an agreement not to be performed within a year. The period of gestation in mares was shown to be ordinarily eleven months. / After that period four months must elapse under the contract before plaintiff could select a colt. Therefore the agreement required fifteen months for its performance; fifteen months before the plaintiff could demand the possession of or acquire title to the colt.

The ease of Lockwood v. Barnes, 3 Hill, 128, applies, and see Kellogg v. Clark, 23 Hun, 396.

In Lockwood v. Barnes, it is held that although performance is to begin and does in fact commence within a year, yet if the contract is not to be completely executed within the year it is within the statute. And the cases cited in Note “B ” at page 130 fully sustain this doctrine. In Broadwell v. Getman, 2 Denio, 87, it is held that a contract not to be completely executed within a year is void, although one of the parties is to perform everything on his part within the year, if a longer time is stipulated for performance by the other.

In this case the agreement was no more an executed one than in the case of Lockwood v. Barnes, supra. I think that the cases of McKenna v. Bolger, 17 St. Rep., 102; Springer v. Bien, 32 id., 65, and other cases cited by plaintiff, are not in conflict with Lockwood v. Barnes, supra. Those cases so cited by plaintiff do not hold that a contract void by the statute of frauds can be enforced, but that where such a contract has been fully performed a plaintiff may recover for the work done or property delivered under such contract. So, in Lockwood v. Barnes, supra, it was held that defendant refusing to go on with the agreement must pay for the use of the horse. See Galvin v. Prentice, 45 N. Y., 162.

So in this case the plaintiff is not without a remedy. He can recover of the defendant on a quantum meruit the value of the services of his horse.

I do not consider the point raised by defendant, that irrespective of the question of the statute of frauds the title to the colt which the plaintiff seeks to recover under the contract did not vest, in the plaintiff so that he could maintain the action.. Comfort v. Kiersted, 26 Barb., 472.

In an action of replevin it was not necessary for the defendant to plead the statute of frauds in order to avail himself of that defense upon the trial. All that was necessary or proper for the plaintiff to state in his complaint was that he was the owner of the colt, and that it was in the possession of the defendant, who refused to surrender it. The defendant, under a general denial, could put the plaintiff to proof of his title, and could show any state of facts on the trial that would disprove such title. He could doubtless show that the contract under which the plaintiff claimed was void. Amburger v. Marvin, 4 E. D. Smith, 393.

The judgment should be affirmed, with costs.

Masttam, P. J., and Herrick, J., concur.  