
    Richard N. Post, Respondent, v. Butler Brothers, Appellants.
    (City Court of New York—General Term,
    January, 1895.)
    An objection that the contract sued upon is invalid under the Statute of Frauds is waived unless taken by answer, where such invalidity does not appear upon the face of the complaint.
    Appeal from judgment entered on verdict rendered by jury in favor of plaintiff.
    
      Kneeland dt Stewart, for appellants.
    
      J. E. ludden, for respondent.
   Ehrlich, Ch. J.

The action was by the plaintiff to recover damages for alleged wrongful discharge. The main questions litigated were, first, whether the hiring was by the year ; and, second, whether the defendants were authorized to discharge the ‘plaintiff before the expiration of the term stated. The jury found on both issues in favor of plaintiff, on evidence which satisfactorily sustains their finding.

The defendants urge'that the contract was one which, by its terms, could not be performed within a year, and was, therefore, void by statute. The rule is that when the complaint does not, as iii this case, disclose an invalid agreement upon its face, the defendant must take the objection by answer, and if not taken that way, it is deemed to have been waived. The defendants did not plead the statute, and thereby waived the benefit of it. Porter v. Wormser, 94 N. Y. 431, 450; Hamer v. Sidway, 124 id. 538, 548; Wells v. Monihan, 129 id. 161.

The exceptions taken appear to .be without merit. The case went to the jury on a fair charge, and their verdict was for the damages legally assessable. . ,

The judgment must, therefore, be affirmed, with costs.

Fitzsimons and Conlan, JJ., concur.

Judgment affirmed, with costs.  