
    Adolph Simis, Respondent, v. Andrew Wissel and Edmund Wilson, Appellants.
    
      Contract — the Statute of Frauds must be pleaded — if not, and proof of an oral agreement is not objected to, the objection is waived — an amendment is properly refused.
    
    "Where an attorney sues to recover damages for the breach of an oral contract to pay him for legal services to be rendered during the term of a contract made with the city of Brooklyn, for the removal of dead animals and offal, which contract was made for a term of five years, the agreement is within the Statute of Frauds, being one which by its terms is not to be performed within one year.
    Although such a contract, as alleged in the complaint, may not specify numerically the number of years during which it is to run, yet, if it expresses a period made definite by reference to any other fact, the fact to which reference is made becomes incorporated into, and is a part of, the agreement. The defense of the Statute of Frauds must be pleaded, and where it is not pleaded and no objection is taken on the trial to the introduction of oral proof of an agreement which, by its terms, is not to be performed within one year, the defense that the contract is void under the statute must be deemed to have been waived.
    It is too late, upon a denial of a motion made to dismiss the complaint 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.
    
      Quaire, whether the court has power to allow such an amendment substantially changing the defense.
    Appeal "by the defendants, Andrew Wissel and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 2d day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 2d day of June, 1896, denying the defendants’ motion for a new trial made upon the minutes.
    
      S. S. Whitehouse, for the appellants.
    
      Edward M. Grout, for the respondent.
   Brown, P. J.:

This action was brought in December, 1892, to recover a sum which it was alleged the defendants had agreed to pay the plaintiff for legal services to he rendered during the years 1892 and 1893, and also to recover for the breach of an alleged contract of employment for the term of five years. The plaintiff testified that, prior to January, 1892, the defendants were contractors with the city of Brooklyn for the removal of dead animals and offal. In December, 1891, such contract was about expiring, and the defendants, desiring to procure an agreement more favorable to them than the prior one, agreed with the plaintiff that if he would aid them in procuring such a contract and render to them all the necessary legal services during the term thereof, they would pay him the sum of §1,000 per year during the life of the contract. This agreement was not in writing, but was entirely oral.

We are of the opinion that the agreement was within the Statute of Frauds. 'While it is true that in the form in which the plaintiff alleged it and testified to it, it was not an agreement which, by its terms, w’as not to be performed within one year, it clearly appears from the testimony, that such was its character.

By the charter of the city of Brooklyn (Ohap. 583, Laws of 1888, tit. 12, § I) such a contract as was made with the defendants was authorized for a term not to exceed five years. The contract which in December, 1891, was about expiring had been for that period, and the city had' advertised for bids for a new contract. The defendant Wissel testified that the advertisemeht called for bids to do the work for five years from January 1, 1892. The defendants made separate bids in response to the advertisement, and both were prepared for them hy the plaintiff. The plaintiff testified that he “ did prepare for Mr. Wissel a bid to do this work for five years from January 1, 1892,” and that he also “ prepared a bid for Mr. Wilson about the same time.” He further testified that his conversation with the defendant Wissel in December, 1891, at which the contract sued upon was made, was “in reference to the contract for the ensuing five years.” After the bid was accepted, a form of contract was prepared by the plaintiff for a term of five years, and the one finally executed was expressed to be for the years 1892 to 1896 inclusive.

This testimony permits of no conclusion except that the contract sued upon was for the period of five years. In order to fall within the statute it was not essential that it should have expressed numerically the number of years during which it was to run. If it expressed a period which was by reference to any other fact made definite and certain, such fact to which reference was so made became incorporated into the agreement and a part thereof.

When, therefore, the parties made an agreement which, by its terms, was to be performed during the life of the contract between the defendants and the city, it became, by its terms, an agreement for the period of five years with precisely the same force as if that term had been written in it.

The Statute of Frauds was, however, not pleaded as a defense, ■and no objection was taken to the proof of the agreement by oral testimony; and under these circumstances the defense that the contract was void could not be made available at the trial. (Crane v. Powell, 139 N. Y. 379.)

The motion to dismiss the complaint, made by the defendants at the close of the plaintiff’s testimony, presented the question whether there was any evidence tending to show that a contract was made, but nothing else. (Id. 384.)

Hpon the denial of the motion to dismiss the complaint, the defendants moved to amend their answer by pleading that the contract was void by the Statute of Frauds, and to the denial of this motion the defendants excepted. We are of the opinion that the ruling of the court upon this motion was proper. The defendants must have known of this defense when their answer was prepared. They knew, of course, that the contract which they had with the city was for five years, and they must have known that an agreement with the plaintiff for the life of that contract was also for the term of five years. Although they had not pleaded the statute, it was still possible for them to have raised the question on the trial that the contract, was void, by objecting to the oral testimony given to establish it. But when they failed to object to that testimony, and permitted the plaintiff to prove his agreement by oral evidence, we think they waived the provisions of the statute, and that the court properly denied the motion to amend the answer. It is also doubtful whether the court had power, under section 123 of the Civil Code, to grant the motion, as to have done so would have changed substantially the defense.

The judgment and order must be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  