
    Thomas McHugh, Respondent, v. Herman Harjes, Appellant.
    (City Court of New York, General Term,
    November, 1898.)
    Statute of frauds — It must be pleaded.
    A guarantor cannot insist that his guaranty of the debt of another is void, because not subscribed by himself in the manner required by the Statute of Frauds, unless he pleads the statute.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict.
    Joseph I. Green, for appellant.
    Peter R. Gatens, for respondent.
   Fitzsimons, Ch. J.

The question for the jury under the issues raised by the pleadings was “ did the defendant guarantee the payment of the debt in question ” ?

That question was decided in the affirmative. The defendant’s liability to pay such debt was established.

The defendant upon this appeal contends that the proper writing whereby the defendant guaranteed such debt was not subscribed by him as required by the Statute of Frauds.

We think that such contention cannot aid the defendant, because his answer failed to plead the statute referred to, which he should have done if he wanted to receive the benefit of that statute.

We think the judgment was right and must be affirmed, with costs.

Conlan and O’Dwyer, JJ., concur.

Judgment affirmed, with costs.  