
    William Schultz, Appellant, v. Simon Cohen, Respondent.
    (Superior Court o£ Buffalo—General Term,
    July, 1895.)
    Where the invalidity of the contract sued upon does not appear on the face of the complaint, objection that it is void under the Statute of Frauds is waived unless taken by answer.
    A parol promise to pay for work being done for another, if the promisee will go on and complete it, is an original undertaking and not within the Statute of Frauds.
    Appeal from a judgment rendered by the Municipal Court [of Buffalo dismissing plaintiff’s complaint.
    
      0 Union B. Gibbs, for plaintiff.
    
      Willard Saperstone, for defendant.
   Hatch, J.

The only cpiestion presented by counsel for the ' court’s consideration on this appeal is, that the contract sued upon is void by the Statute of Frauds. The complaint set forth a cause of action for materials furnished and work, labor and services performed bv nlaintiff for defendant, at his request, in and about the building of a house at 28 Union street in the city of Buffalo. The answer is a general denial. Upon the trial defendant sought to amend his answer by a plea of the Statute of Frauds; this was denied and the case is, therefore, to be disposed of on the issue as originally framed. The invalidity of the contract sued upon did not appear upon the face of the complaint; it was, therefore, incumbent upon defendant to plead the statute as a defense or be held to have waived it. Wells v. Monihan 129 N. Y. 161; Crane v. Powell, 139 id. 379.

If the plea had been interposed it would not have availed defendant, as the contract proved upon the trial was not obnoxious to the statute. The proof showed that plaintiff had contracted with a third party to do the plumbing work in defendant’s house; this contract was partly performed by plaintiff when it was violated by such third party in omitting payment according to its terms, thereupon plaintiff refused to prosecute the work thereunder; defendant applied to him to finish the work, and said to plaintiff: “ I should go ahead and finish and he would pay me.” Thereupon plaintiff went on and completed the work. The effect of this was to constitute an original undertaking on defendant’s part to pay plaintiff in accordance with the terms of the contract. King v. Despard, 5 Wend. 277; Devlin v. Woodgate, 34 Barb. 252; Quintard v. De Wolf, Id. 97; Mallory v. Gillett, 21 N. Y. 422.

The judgment should, therefore, be reversed, with costs.

Titus, Oh. J., and White, J., concur.

Judgment reversed, with hosts.  