
    (82 Hun, 460.)
    BALL et al. v. STOVER et al.
    (Supreme Court, General Term, First Department.
    December 14, 1894.)
    Statute of Frauds—Void Contract—Renewal.
    Where a verbal contract of employment, void under the statute of frauds, has been fully performed, its invalidity cannot be asserted by either party, and the parties, by continuing to perform and accept the services after the term specified, may thereby extend it for another term.
    Appeal from judgment on report of referee.
    Action by Elias M. Ball and John W. Day against George B. Stover and Jennie A. McCowatt, as surviving partner of the firm of W. R. McCowatt & Co., for commissions on goods sold by plaintiffs for defendants. From a judgment in favor of plaintiffs for $2,243.97, defendants appeal.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    H. V. Borst, for appellants.
    Louis H. Hablo, for respondents.
   PARKER, J.

The referee found that in September, 1890, a verbal agreement was entered into between plaintiffs and defendants by which the former were employed as the selling agents of the latter for a period of one year from January 1, 1891; that the agreement for such year was fully kept and performed by both parties; and that without a modification of the original agreement, or a suggestion in that direction, by either of the parties, the plaintiffs continued to serve the defendants in the same capacity, and received therefor the same rate of compensation, until February 25, 1892, when plaintiffs were discharged without cause. Upon this conduct of the parties the referee has based an inference of fact that the contract of employment was renewed for the period of one year from January 1, 1892, and has awarded to the plaintiffs the damages sustained by reason of their discharge. His conclusion in such respect is in accord with the established rule where the employment is for a year’s service at a yearly salary. Adams v. Fitzpatrick, 125 N. Y. 124, 26 N. E. 143; Wallace v. Devlin, 36 Hun, 275. The same rulé applies where the employment is by the .year, thé compensation to consist of commissions instead of a salary. Dean v. Woodward, 52 Hun, 421, 5 N. Y. Supp. 593. Appellants’ contention that the general rule will not apply, because the contract of employment for 1891 was within the statute of frauds, and void, is not well grounded. While the original contract was not enforceable so long as it remained executory, yet, when fully and voluntarily performed by both parties, its invalidity could no longer be asserted by either, and it afforded adequate basis upon which to predicate an inference of fact as to the intention of the parties in proceeding in accordance with its terms upon a further term than that provided by it. Adams v. Fitzpatrick, supra; Hodge v. Newton, 13 N. Y. St. 139. The finding of the referee to the effect that the first employment was for the year 1891 is challenged by the defendants. The evidence upon that subject is not so full as •could be wished, but such as there is tends to and is sufficient to •sustain the finding. One of the defendants said on his direct examination that the contract for plaintiffs was for the year 1891. On cross-examination he said that his testimony referred to the •contract set up in his answer as the contract made for the year 1891. It is now urged that his evidence does not amount to an admission that the contract upon which plaintiffs have recovered was for the year 1891. But the suggestion is without force. Defendants had but one contract with the plaintiffs prior to the renewal contract. It was made in September, 1890, and both the complaint and answer referred to it, although differing as to its terms. It was while speaking of the terms of this contract that defendants said it was for the year 1891. The record contains no evidence to the contrary. The judgment should be affirmed, with costs. All concur.  