
    Charles Lupean, Appellant, v. Cephas L. Brainard, Respondent.
    
      Statute of Frauds — it must be pleaded — waiver of the objection that it is not — proof, without objection, of an oral contract not to be performed within one yea/r — an amendment of the answer, setting up the statute, changes the defense.
    
    Where proof of an oral contract to render services, which, by its terms, is not to be performed within one year, has been received without objection upon the trial of an action brought to recover damages, because of a breach thereof by the employer, and the answer, denying each and every allegation of the complaint “which is not hereinafter admitted,”• fails to plead,the Statute of Frauds, that defense is not available to the defendant, upon a motion for a non-suit based upon the Statute of Frauds, made at the end of the trial.
    
      Semble, that a failure of the plaintiff, when such a motion was made, to call the attention of the court to the fact that the answer did not set up the defense of the Statute of Frauds, was not a waiver- of the plaintiff’s right to question the soundness of the decision made Upon such motion.
    
      Semble,- that a court of a justice of the peace has no power, at such a stage of a trial, to permit the defendant to amend by setting up the. statute, as such an amendment .would change substantially the defense.
    Appeal by the plaintiff, Charles Lupean, from a judgment of the County Court of Chautauqua county .'in favor of the defendant, entered in. the office of the clerk of the county of Chautauqua on the 10th day of July, 1896, upon a nonsuit granted by the court, and also from an order entered in said clerk’s office on the 25th day of January, 1897, denying the defendant’s motion for a new trial made upon a case containing exceptions.
    The complaint in the action set forth that the parties entered into a contract by the terms -of which the plaintiff was to work for the defendant for one year from the 21st day of March, 1894, on defendant’s farm in the town of Portland, Chautauqua county, for which services of the plaintiff the defendant agreed to pay him $250 in addition to furnishing him with a house and garden, fire wood, and pasture for a cow ; that the plaintiff had fully performed his part of the said agreement; that after the plaintiff had worked eight months under this contract the defendant discharged him from his employ without just cause, for which plaintiff had suffered damage and for which he demanded judgment.
    The defendant answered, denying each and every allegation in the plaintiff’s complaint contained “which is not hereinafter admitted.” The answer proceeded to state a payment to the plaintiff, and further alleged a contract to employ the plaintiff and his wife to work on the farm in Portland at the rate of $250 per- year, and that they continued to work for the defendant as long as the parties could agree, the contract set forth in the answer being substantially the same as that alleged in the complaint, except that the compensation was to be at the rate of $250 per year, and not for that period. The answer- further alleged a breach of the contract on the part of the plaintiff, and counterclaim for damages. The Statute of Frauds was not set up in the answer, or any allegation that the contract was within its provisions. There was no general denial in the answer, except as above stated.
    Upon the trial the plaintiff testified without objection that sometime in the spring of 1895 he engaged with the defendant to work for him for a year for $250, and that the contract was made in a conversation had with the defendant. He proved the verbal contract by other witnesses, the same as alleged in the complaint. Ho objection was-taken to the evidence, or that the contract was within the statute, until the close of the trial, when the defendant moved for a nonsuit upon the ground that the contract as proved was void under the Statute of Frauds, inasmuch as it was not in writing and was not to be performed within one year from the making thereof. The motion was granted.
    
      Hooker & Dikeman, for the appellant.
    
      Franz C. Lewis, for the respondent.
   Ward, J.:

Some of the earlier cases seem to hold that, if the answer contained a general denial of the contract alleged in the complaint, the plaintiff must establish a valid contract, and if lie gave evidence showing a contract within the Statute of Frauds the defendant was at liberty, under the general denial, to take, that objection, although it had not been affirmatively pleaded in the answer.

Upon this question there is some confusion, however, in the earlier cases, and it is unnecessary to review them.

It was said by Bradley, J., in Smith v. Slosson (89 Hun, 568 ; 35 H. Y. Supp. 548), that there had been a conflict in the earlier cases upon this subject, but the doctrine of the later cases is that it must be pleaded to render the Statute of Frauds available as a defense.

And such is the decided trend of the later cases. ■ (Hamer v. Sidway, 124 N. Y. 538 ; Wells v. Monihan, 129 id. 161; Crane v. Powell, 139 id. 379; Bannatyne v. Florence Milling Co., 77 Hun, 289; Barrett v. Johnson, Id. 527; Cheever v. Schall, 87 id. 32; Schultz v. Cohen, 34 N. Y. Supp. 927; Smith v. Slosson, supra Thelberg v. National Starch Manufacturing Co., 2 App. Div. 173 ; Simi's v. Wissel, 10 id. 323.)

In Schultz v. Cohen (supra) there was a general denial in the answer.

And in Crane v. Powell (supra) the answer, as in the case at bar, admitted certain allegations in the complaint, but denied all other allegations, which included the contract that it was claimed was within the Statute of Frauds. But there was no allegation in the answer'alleging the Statute of Frauds ; that was a case like the one at bar, where the contract was oral, and, by its terms, was not to be performed within one year, and'the plaintiff was permitted to prove without objection-a verbal agreement to the effect set forth in. the complaint, and it was held that a motion to dismiss the complaint on the ground that the agreement, not being in writing, was void under the Statute of Frauds, made at the close of the plaintiff’s evidence, was properly denied. Judge O’Briest says (at p.- 388): “ The present system of procedure is founded upon the idea that litigants should, when possible, know in advance the precise questions they must meet at the trial. When a contract is set out in the complaint as the cause of action, and. the defendant intends to assail it on some special or statutory ground, the general spirit of the system is not complied with unless notice is given of this intention to the opposing party by the pleadings.

“ In the solution of this question the provisions • of the Code should not be overlooked. The statute may be used as a defense to actions on certain agreements. A defense must now be presented either by demurrer or answer. (Code, sec. 487.)

“When the defect in the plaintiff’s cause of action appears on the face of the complaint, the defense must be interposed by demurrer. (Sec. 488.) When the complaint does not, as in this case, disclose an invalid agreement upon its face, but it is, in fact, invalid for some reason, the defendant must take the objection by answer, (sec. 498), and if the objection is"not taken in. either way, the defend-' ant is deemed to have waived it. (Sec. 499.) The conclusion is thus reached that the defendant waived the benefit of the statute, in this case, by omitting to plead it.”

This case further held that the provisions of the Statute of Frauds, declaring contracts void which, by their terms, are not to be performed within one year unless in writing, does not prohibit the making of an oral agreement. It simply creates a new defense and introduces a new rule of evidence ; i. <?., it requires that the agreement shall be proved by a writing, and, as has been shown, such defense to be available must be alleged.

Where the complaint states a contract, but does not aver whether it is in writing or not, for the purposes of the complaint it will be presumed that it was in writing. (Marston v. Swett, 66 N. Y. 209.)

So that the objection, in this case, should have been taken by answer*.'

It is claimed in the brief of the respondent’s counsel that the plaintiff did not raise the point upon the trial that the answer did not allege the Statute of Frauds as a defense, and, therefore, that the objection that it had not done so was waived. The record does not disclose how the fact was, whether plaintiff’s counsel upon the trial, in opposition to the granting of the motion- for a nonsuit, stated this objection. The pleading was before the court, and it was apparent from it that the defendant was not in a position to urge the ground upon which the nonsuit was granted.

We do not think that the failure (if such failure existed) of the . plaintiff’s counsel to call the court’s attention to this defect in the answer, was a waiver of the fatal ruling made by the County Court.

. That learned' court, in an opinion given upon the motion for a new trial, said that if the sufficiency of the answer had been raised upon the trial, the point might have been obviated by the action of the court or of the adverse party; the answer might'have been amended, and the defendant have been permitted to set up the Statute of Frauds..

As we have said, the record does not disclose whether the question as to the sufficiency of the answer was raised at the trial, but it does disclose that the evidence of the plaintiff’s contract was received without objection, and several of the cases we have cited lay great stress upon the failure to make such objection-as a ground of waiver of the defense. The statement in the opinion that the question was not raised at the trial cannot be regarded as a part of the record upon which we. are to act, but, assuming that the opinion in this regard is correct as to the -fact, it was not necessary for the plaintiff to do so, as his proof had been received-regarding the contract without objection, and the pleadings were-before the court.

In Simis v. Wissel (supra) it was held in a case much like the one at bar in principle that it was too late, upon the denial of a motion to dismiss the complaint made at'the end of the trial, to apply for'leave to amend the answer by setting up therein the defense of the Statute of Frauds.

And it was also held that it was doubtful whether the court had power to grant such an amendment, as to have done so would have changed substantially the defense: ■ •

We are clearly of the opinion that the plaintiff, uqxm the trial, did not waive his right to question here the soundness of the decision of the County Court.

- The judgment- and order should be reversed and a new trial granted, with costs to -abide the event.

■ All concurred, exce22t Follett,-J., not sitting.

Judgment of the County Court reversed and a new trial ordered, with costs to abide the event.  