
    Gustave Cohen, Appellant, v. Morris Levy, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1912.)
    Evidence — Oral — Action upon a contract.
    Statute of Frauds—pleading statute as a defense.
    In an action upon a contract partly in writing, testimony as to the oral part is not objectionable as tending to vary a written instrument.
    Where, in an action to recover on a contract of employment which the answer, for want of a denial, admitted was made for a period of twelve months from the 15th day of September, 1910, the testimony of plaintiff on cross-examination that he 'was employed “ from the 15'th of September, one year,” and also “ from September 15, 1910, to September 15, 1911,” is a mere conclusion that the term was for a year and a day, and the contract was not within the Statute of Frauds.
    Appeal by plaintiff from a judgment dismissing the complaint in the Cj,ty Oourt of the city of Rew York, at the close of his case,. and from an order denying a motion for a new trial.
    L. & I. J. Joseph, for appellant.
    Myron Sulzberger, for respondent.
   Bijue, J.

This action was brought for breach of a contract of employment. The contract, set forth in the first and second paragraphs of the complaint, alleges an employment of the plaintiff by the defendant on the 15th of September, |1910, for a period of twelve months. These paragraphs are admitted by the answer through failure to deny the same. Plaintiff’s bill of particulars alleges the agreement to have been partly in writing and partly oral; the writing consisting of a previous agreement of the same parties entered into the previous day, and the oral part, a supplemental agreement of September fifteenth.

On the trial, defendant objected to evidence of the oral agreement as tending to vary a written instrument, but the objection was properly overruled, since the agreement sued upon and admitted by the answer was one partly in writing and partly oral. Routledge v. Worthington, 119 N. Y. 592.

On cross-examination, defendant’s counsel asked plaintiff to state the term of the contract. Plaintiff answered “ From the 15th of September, one year ” He then asked: Q. “From the 15th of September until when?” A. “From September 15th, 1910, to September 15th, 1911.” To further questions along the same line, the witness repeated similar answers. From a fair reading of these answers, it is quite manifest that plaintiff was merely interpreting in a layman’s phraseology the contract as he had alleged it in his complaint and his bill of particulars, and as evidenced by a part of the written agreement, namely, “ a period of twelve months from the 15th day of September, 1910.” On these answers of the plaintiff, however, defendant was permitted, over objection, to amend his answer by pleading the Statute of Frauds, and on his motion, at the close of plaintiff’s case, the complaint was dismissed on the ground that the contract in evidence was against the statute. In this the learned trial court erred. The contract as alleged in the complaint, set forth in the bill of particulars, and as admitted by the 'answer, was not within the statute; and plaintiff’s opinion, or interpretation thereof, was unavailing to change it into one the terms of which, as is claimed by defendant, have been interpreted to be for a year and a day, citing Jonap v. Preger, 59 Misc. Rep. 187.

Moreover, an examination of the Jonap case will indicate that it was decided only on the point that the one year term of the contract there involved was not to begin until the day following the one on which it was made, and that the decision by no means involved an interpretation of phraseology actually or inferentially equivalent to the words “ from September 15th, 1910 to September ¡15th, 1911.” The passage in the opinion (at p. 189) which, it is .now claimed, indicates that such language would cover a period of a year and a day, does not justify that inference, and, furthermore, was purely obiter. I should be reluctant to hold that as matter of law the phrase in a contract “ from September 15th, 1910 to September 15th, 1911 ” covers a year and a day rather than a year. See also Solomon v. Vallette, 152 N. Y. 147.

Judgment reversed and new trial granted, with costs to appellant to abide the event.

Seabuby and Lehman, JJ., concur.

Judgment reversed.  