
    Charles S. Closson, Appellant, v. The Thompson Pulp and Paper Company, Respondent.
    Third Department,
    March 18, 1906.
    Statute of Frauds — oral contract not to be performed within one year — defendant may rely on the statute when complaint sets out a contract which by its terms is not within the statute.
    When a complaint sets out -an oral contract, which by its terms is to be performed within one year, and thus is not within the Statute of Frauds, the defendant is not in default in failing to plead the statute. But when at trial the plaintiff proves an oral contract within the statute, differing from that alleged, the defense of the statute is available to the defendant without being pleaded.
    Where the complaint alleged a contract of hiring made on or about April 25, 1900, for a year, and the proof left it as a question of fact to be determined whether the employment was to begin on that day or on May first following, and the court set aside the verdict in favor of the plaintiff upon the ground that the recovery was upon a contract other than the one alleged, the order will be sustained, not for the reason stated, but because there was a mistrial resulting from the assumption by the court that the Statute of Frauds was not available under the pleadings.
    Cochrane, J., dissented.
    Appeal by the plaintiff, Charles S. Closson, from an order of the Supreme Court, made at the Saratoga Trial Term and entered in the office of the clerk of the county of Saratoga on the 27th day of February, 1905, as resettled, by an order ^entered 'in said clerk’s-office on the 27th day of March, 1905, setting aside the verdict Of a jury theretofore rendered in favor of the plaintiff and awarding the ■defendant, a new trial of the action.
    This is an appeal by the plaintiff from an order made upon,the minutes of the justice presiding at the. trial, setting aside a verdict iff favor of the plaintiff and granting a new trial. The complaint alleged a-contract .made on or about April 25, 1900, employing the plaintiff for a year from that date at $100 per month- and the defendant’s breach; The answer admitted services performed, alleged full payment therefor and denied the contract and its breach. The plaintiff, on 'direct examination, swore to a'contract made April twenty-fifth for- a year from that' date, the services beginning that day. On cross-examination he swore the year began May first, and that he. was employed for a year from May first; Defendant,, by motion for a nonsuit at the close of the plaintiff’s case, raised the question fliat the contract being for a year from May first was by its terms not to be performed within a year and was, therefore, void by the Statute of Frauds. The motion was denied and the defendant excepted.- Defendant asked to amend his ansWer, pleading the statute, and made a statement as to his good faith and his surprise, which was accepted by the court as true. , The plaintiff objected to the amendment as too late, the defendant having gone to trial on a denial only; The motion- was denied and the defendant excepted. After verdict a motion for a neW trial on the minutes was granted, the order\reciting that the complaint should have been dismissed, the contract proven not having been pleaded and being a contract within the Statute of Fratids,
    
      Nash Rockwood, for the appellant.
    
      John L. Henning, for the respondent.
   Kellogg, J.:

The complaint' alleged a contract which ’ was to be performed within a year. While it alleges that it was made on or about April twenty-fifth, it alleges the contract as for a year from that date. It left the -precise day when the- contract was made somewhat uncertain, but alleged a contract for a year’s service from that day, when it was ascertained. Therefore, within Fanger v. Caspary (87 App. Div. 417) and Booker v. Heffner (95 id. 84), the defendant was not in default in failing to plead the statute, but could avail himself of that defense when the proof showed a different contract than the one alleged or fairly foreshadowed, and when that difference brought the contract within the statute. Bennett v. Mahler (90 App. Div. 22) does not change the rule in the Fanger case, or control this case. There the contract was alleged as made on or about January 1,1902, for the year 1902. The proof showed the contract made December thirtieth,, which was strictly within the allegation. The court held that the complaint indicated a contract which might be within the statute, and that the defendant should have pleaded that defense, and suggested an amendment to the answer, but the defendants elected to rest upon the position that the contract proved was not within the pleading, and they failed. Here the contract' was made April twenty-fifth, as alleged, for a year, but it is not clear when the year was to begin. If the year began April .twenty-fifth, the contract was valid; if Hay first, it was void. The order setting aside the verdict recites that the contract proven was not- pleaded and was void within the Statute of Frauds, and that the complaint should have been dismissed for that reason. A dismissal of the complaint would not have been proper; there was a question of fact for the jury to determine, to wit, whether the contract was to begin April twenty-fifth or May first. The plaintiff’s testimony was ambiguous, and it was for the jury and not for the court to determine its true meaning. But it is evident from the record and the statements in the order that the trial judge felt that the rulings of the court, the denial of the motion to amend and the charge to the "jury had caused a mistrial and prevented the defendant from availing itself of-a defense which it tried to urge, and which the court upon consideration deemed controlling. It was, therefore, proper to set aside the verdict and grant a new trial. The result is sustained, but not for the reasons stated in the order.

The order should be affirmed, with costs to abide the event.

All concurred, except Cochrane, J., dissenting.

Order affirmed, with costs to abide event.  