
    (67 Hun, 472.)
    HARTWELL v. YOUNG.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    1. Statute op Frauds—Part Performance.
    A verbal contract to render services, not to be performed within a year, is not taken out of the statute of frauds by part performance.
    
      2. Same—Recovery on Quantum Meruit.
    Where a contract to perform services is void under the statute of frauds because not to be performed in a year, the employe may abandon the same without any fault on the employer’s part, and recover on a quantum meruit for the services actually rendered. Galvin v. Prentice, 45 N. Y. 162, distinguished.
    3. Same—Pleading in Justice’s Court.
    Since, under Code Civil Proc. § 2940, pleadings in justices’ courts are hot required to be in any particular form, and parties are not held to technical rules, the statute of frauds may be taken advantage of without being pleaded.
    Appeal from judgment on report of referee.
    Action commenced in a justice’s court by Cordelia Hartwell against Halleck Young. From the judgment of the justice an appeal was taken to the county court, where the cause was referred. From a judgment for plaintiff on the renort of the referee, defendant appeals.
    Affirmed.
    Argued before MÁYHAM, P. J., and PÜTNAM and HERRICK, JJ.
    Eldorous Dayton, for appellant.
    Frank K. Hasbrouck, (F. A. Westbrook, of counsel,) for respondent.
   MAYHAM, P. J.

This is an appeal from a judgment entered upon the report of a referee. The action was originally in a justice’s court, and from the judgment rendered therein an appeal was taken to the county court for a new trial in that court, when the same was referred to a referee, from the judgment on whose report this appeal is taken. On the trial before the justice it was objected that the court had no jurisdiction of the parties, on the ground that neither the plaintiff nor. defendant resided in the town where the action was commenced, or in an adjoining town in the same county, as required by section 2869 of the Code of Civil Procedure. The same question was raised before the referee, and upon the proof on that subject the referee held that the justice had jurisdiction. We think the finding and determination of the referee on the question of plaintiff’s residence was sustained by the evidence, and that the exception to the report on that point was not well taken. Nor do we think there was any error committed by the referee in the receipt or rejection of evidence for which this judgment can be reversed. The original complaint before the justice was for work, labor, and service rendered and performed by the plaintiff and her infant son for the defendant. The amended complaint in the county court did not materially change the nature of the claim from that made before the justice. The answer of the defendant alleged, among other things, that the services of the plaintiff were rendered under a special contract, by which the plaintiff was to work for the defendant for one year, and that she quit said service before the expiration of the agreed time. Also that on the 20th of December, 1890, the plaintiff contracted and agreed with the defendant to work for him for one year from December 20, 1891, and that the plaintiff quit such service before the expiration of the agreed time, to the damage of the defendant of $75, and demands judgment against the plaintiff for that amount.

The referee found that two or three days before December 20, 1890, the plaintiff and defendant made a verbal contract, whereby the plaintiff and her infant son were to work for the defendant for one year from December 20, 1890, for the sum of $260; that the plaintiff and her son worked for defendant from December 20, 1890, until May 16, 1891, when they quit the service of the defendant; that they worked 20 weeks, and that their services were reasonably worth $5 per week, being $100; and that the defendant had paid the plaintiff $60 for such services, leaving unpaid and still due $40. The referee also finds as a conclusion of law that the verbal contract was void by the statute of frauds, and that plaintiff was entitled to recover on a quantum meruit for the value of the services of the plaintiff and her] son for the time that they actually worked. The defendant excepted to this conclusion of law, and upon this exception the principal contention in this case arises. The question fairly presented by this exception is whether a contract for services for one year, to commence in futuro, which has. been entered upon and partly performed by the employer, can be treated by such employe as void, so that such employe may abandon performance without any fault of the employe, and recover fa* the services rendered upon a quantum meruit, upon the theory of an implied agreement that the employer will pay for such services what they are fairly and reasonably worth. Clearly the contract proved in this case and found by the referee could not be performed within one year from the time it was made, and, as it was not evidenced by any vmting signed by the party to be charged, was within the statute of frauds, and void. 3 Rev. St. (7th Ed.) p. 2327, § 2. It was not, therefore, a contract which could be enforced by either party, and no action would lie for its breach. If on the 20th day of December, 1890, the plaintiff had entered performance, and the defendant had refused her and her son employment, she could not have maintained an action for a breach of the contract, and, on the other hand, if the defendant had demanded performance, and the plaintiff had refused, no action would lie for such refusal. In Billington v. Cahill, (Sup.) 4 N. Y. Supp. 660, the court held that an oral agreement to work for one year, made in the month of March, to commence on the 1st day of the next April, was void under the statute of frauds, and that no action would lie on such agreement by the employe against the employer for the discharge of the plaintiff, without any reason, before the expiration of the year. In Oddy v. James, 48 N. Y. 685, it was held that “where a verbal agreement is entered into for work and labor of one of the parties for a year, to commence in futuro, an entry upon the employment with the acquiescence of the employer, but without a new contract, does not take the case out of the statute of frauds, and the employer is not liable under the contract.” In Shute v. Dorr, 5 Wend. 204, it was held that “a paroi agreement by a parent that his child, aged 16 years, shall serve a third person until he arrives at the age of 21, when his master is to pay him $100, is within the statute of frauds, but if any services are rendered under such contract there may be a recovery of the same upon a quantum meruit.” It is true that in the case last cited the contract provided for its termination before the end of the time, if the boy became dissatisfied; but the court held that the plaintiff might recover upon a quantum meruit, upon the ground either that the special contract was void under the statute of frauds, or that it had been terminated and abandoned by the parties. In Furnow v. Hochstadt, 7 Hun, 80, it was held that a verbal contract, made in February, to work one year from the following May, was void under the statute, and that a partial performance did not take it out of the statute, and that in an action brought upon the void contract it was proper to allow the plaintiff to amend his complaint so as to allow a recovery for the value of the services actually rendered.

But it is insisted by the appellant that before the plaintiff can recover in this action upon a quantum meruit arising out of an implied promise by the defendant to pay what the work done under this void agreement was worth, she must show that she was willing to perform the agreement in its entirety on her part, and that the reason of her failure to do so was some act of the defendant; and in support of that proposition he cites Galvin v. Prentice, 45 N. Y. 162. That was a case where the plaintiff contracted to work for the defendant for three years in learning the business and trade of hatter, and the price was graduated by the year, based upon the supposed proficiency which was made by the plaintiff, and for the third year he was by the terms of the contract to receive full journeyman wages. At the end of the second year he abandoned the contract. On the trial the plaintiff was permitted to amend the complaint so as to claim upon a quantum meruit for the services, and the only exception taken at the trial and which was reviewed on appeal was to the charge of the trial judge, in which he instructed the jury that “the contract, although void, may be considered prima facie evidence of the value of the services.” To this part of the charge the defendant excepted, and that exception alone was presented on the appeal, so that whatever was said by the learned judge outside of that- exception was obiter, and can scarcely be regarded as an authority upon the questions raised here. None of the cases cited by the learned counsel hold that where labor is performed under a void contract the employe must perform the entire labor required by such void contract before a recovery can be had for the work actually performed. In Erben v. Lorillard, 19 N. Y. 302,—one of the cases cited on this point in Galvin v. Prentice,—Grover, J., in discussing the question of contracts void by the statute of frauds, uses this broad language:

“The contract being void and incapable of enforcement in a court of law, the party paying money or rendering service in pursuance thereof, may treat it as a nullity, and recover the money or the value of the money or the value of the services. * * * When the agreement fixing the compensation is void, it furnishes no evidence of value. The parties are presumed to know the law, and to understand that such compensation cannot be recovered. Their position is the same in legal view * ” * as though no agreement had been made in fact, as there has been none in law. ”

This reasoning of the learned judge would seem to leave the parties precisely as if no contract had been made in fact, in which case there is little doubt that the person performing the services could recover upon an implied assumpsit to pay what they were fairly worth. But it must be conceded that the authorities on this subject do not appear to be all in harmony, and that this question upon authority is not free from doubt. I am, however, inclined to the opinion that, where parties make a contract for labor not in 6 any way involving the investment of capital further than the mere compensation for services, and work is performed under such void contract, a party performing such labor is entitled to recover for so much labor as he performs with the permission or consent of the other party to such void contract. He would at all times be subject to discharge from such service, and his void contract would give him no immunity against the dismissal from such service; and so long as he voluntarily, with the permission of the other party, performs service to his advantage and with his implied assent, there is no reason apparent, either in justice or morals, why this void contract, and his failure to fulfill its terms, should be interposed as a defense to his recovery upon a quantum meruit.

It is also objected by the appellant that, as the question of the statute of frauds was not raised by the pleadings, it cannot be available as a defense, or to uphold a cause of action. Porter v. Wormser, 94 N. Y. 450; Wells v. Monihan, 129 N. Y. 161, 29 N. E. Rep. 232. If the technical rules of pleading obtained in justices’ courts which prevail in courts of record this objection would be available; but in justices’ courts pleadings are not required to be in any particular form, and parties are not held to the observance of technical rules. Code Civil Proc. § 2940. On the whole case, I think the judgment of the county court should be affirmed. Judgment affirmed, with costs. All concur.  