
    Edwin M. Guinzburg, Respondent, v. Julius Joseph, Appellant.
    First Department,
    December, 30, 1910.
    Pleading — reply—defense of Statute of Frauds.
    Where the complaint in an action upon a contract which must be in writing under the Statute of Frauds does not state whether the contract is in writing or not, the plaintiff will be required to reply to a separate defense pleading the Statute of Frauds.
    The Statute of Frauds is more than a mere rule of-evidencepit is a substantial defense upon which-in a proper case a complaint may be dismissed. .
    Appeal by the defendant, Julius Joseph, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleric of the county of New York on the 15th day of November, 1910.
    
      Max J. Kohler, for the appellant.
    
      Jay G. Guggenheimer, for the respondent.
   Scott, J.:

Appeal from order denying motion to compel plaintiff to reply to separate defenses.

The allegations of the complaint are that prior to December, 1902, defendant had acquired a considerable block of mining stock, in which plaintiff also acquired an interest; that both parties were anxious to dispose of the stock ; that it was agreed that both parties should try to sell the stock, it being a condition, .however, that plaintiff should be permitted by defendant to make an agreement to indemnify and hold harmless any proposed purchaser against any loss by reason of such purchase; that it 'was further agreed that if plaintiff should be called upon to pay back to any . purchaser, by reason of said.contracts of indemnity, any money paid by said purchasers the. defendant would repay to plaintiff the amount so paid back; that plaintiff sold stock to the amount of $3,750 ; that the stock afterwards bécame worthless and plaintiff was required to repay said amount which he now seeks to recover from defendant. The defendant, in addition to a general denial, pleads, a counterclaim, and in three separate defenses pleads the Statute of Frauds. The plaintiff has replied to the counterclaim, and the purpose of the present motion is to compel him to reply to the apparently complete defenses based upon the Statute of Frauds. The motion is authorized by section 516 of the Code of Civil Procedure and the tendency at the present day is to grant such motions with some liberality both to narrow the issues and to prevent surprise at the trial. The Statute of Frauds is something more than a mere rule of evidence. It is a substantial defense upon which, in a proper case, a complaint may be dismissed. (Seamans v. Barentsen, 180 N. Y. 333.) The contract stated in the complaint appears to be one which the statute requires to be in writing, but it is not stated whetlib^'t is in' writing or not. Under these circumstances we think that the plaintiff should be required to show how he expects to meet the plea of the statute. The defendant says that when the reply has been served he expects to move for judgment upon the pleadings. It is not apparent how he can do that so long as his counterclaim remains undisposed of.(Emanuel v. Walter, 138 App. Div. 818.) But whether he can so move or not is immaterial. For the other reasons above stated we are of opinion that the motion should have been granted. .

The order should be reversed, with ten dollars costs and disbursement's, and the motion granted, with ten dollars costs.

Ingbaham,' P. J., Clabke, Millee and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  