
    Albert Jacobson, Respondent, v. Herman Schiffer et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Master and servant — Services and compensation—Actions for wages — Instructions — Burden of proof.
    . Where, in an action for breach of an oral contract of employment for one year from a certain day; the defendant pleads the Statute of Frauds, the burden is upon plaintiff to show that the contract was made upon the day the year began.
    In such case, the burden of showing that the contract is not within the Statute of Frauds rests upon the plaintiff to the end of the trial, and an instruction that the burden is upon the defendant to show that the case is within the statute after plaintiff has made out a prima facie case is erroneous.
    Appeal by the defendants from a judgment of the city Court of the city of New York, Trial Term, rendered in favor of the plaintiff.
    Cooke & Forsch (David Gerher and Albert Forsch, of counsel), for appellants.
    Paul Hellinger (Henry C. Burnstine, of counsel), for respondent.
   Leventbitt, J.

This is an action by an employee against his employers to recover damages for breach of contract of employment. The plaintiff pleaded and presented proof tending to support an oral contract made on April 15, 1905, and expiring Apiil 15, 1906. He was discharged on ¡November 3, 1905. The defendants denied the terms of the contract and pleaded the Statute of Frauds. The basis of that plea was that the contract was made on April 12, 1905, and, if it was not to expire until April 15, 1906, as the plaintiff contended, it was void because not reduced to writing.

"Whether the contract was made on April twelfth or April fifteenth was sharply contested at the trial. If made on the former date the statute applied and the plaintiff could not recover; if on the latter, the statute did not apply and an obstacle to his recovery had been removed. Therefore, the question upon whom rested the burden of proof to establish the correct date and the consequent application or nonapplication of the statute became all important. That question was involved in various requests made by the plaintiff’s counsel and charged by the court as follows:

First. “ I ask your Honor to charge the jury that the burden is upon the defendant to establish, by a preponderance of the evidence, the making of this contract before the 15th of April. In other words, the affirmative defence as to the Statute of Frauds — the burden of establishing it — is on the other side.”

Second. “I ask your Honor to charge the jury that in making out our prima facie case, it was incumbent upon the plaintiff to show that a contract was made that was not within the Statute of Frauds.”

Third. “ I ask your Honor to charge that the burden on the defendant in regard to the Statute of Frauds, is simply to sustain the affirmative defense in his pleading.”

Fourth. “ In regard to the Statute of Frauds the burden is on the defendants to establish their affirmative defense of it after plaintiff has made out a prima facie case without the statute.” .

To the first and fourth requests the defendants interposed exceptions, which require a reversal of the judgment which the plaintiff recovered.

The jury was first instructed that the burden rested upon the defendants to establish the making of the contract before April fifteenth and the resulting application of the statute; again, that it was necessary to the plaintiff’s prima facie case that he should show that the contract was not within the statute; and, finally, that the burden was on the defendants to sustain the affirmative defense .of the statute after the plaintiff had made out such a prima facie case. Without considering the effect upon the jury of these inconsistent and confusing propositions, the two challenged by the defendants are contrary to law; the first, because it cast upon the defendants a "burden, which rested on the plaintiff, and the other because it shifted to the defendants a burden which the plaintiff was bound to bear from the beginning to the end of the trial. In fact, the burden of proof never shifts. Kay v. Metropolitan St. R. Co., 163 N. Y. 447; Goldstein v. Goldman, 74 App. Div. 356.

The judgment must be reversed and a new trial ordered,' with costs to the appellants to abide the event.

Gildersleeve and McCall, JJ., concur.

Judgment reversed and new trial ordered,' with costs to appellants to abide event.  