
    Thomas Smith, App’lt, v. Margaret W. Slosson, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Pleading—Answer—Statute of frauds.
    Where a contract is void by the statute of frauds because not in writing and, by its terms, not to be performed within one year from the time it was made, the statute, 'to be available as a defense, must be pleaded.
    
      2. Same—Tender.
    Where the answer is received and retained without raising the objection that the defendant has not paid into court the money which the answer alleges to have been tendered to plaintiff, the latter may be deemed to have taken issue upon the plea of tender and waived the irregularity.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    The plaintiff, by his complaint, alleges that on or about the 26th day of March, 1894, he made with the defendant an agreement to perform services (there mentioned) for her “ for and during the period of one year from, and including, said date,” for the compensation of $22 per month and board; that he en: tered upon the performance of the contract, and continued in the service of the defendant until or or about October 31, 1894, when the defendant refused to permit him to proceed further with the performance of the contract, although he was, and has since been, ready to do so; that the defendant paid him a portion only of the compensation for services performed, and that the plaintiff sustained damages by reason of the breach of the agreement. The defendant, bjr her answer, admits that on or about the 29th day of March, 1894, she made with the plaintiff a contract for his services, but denies that, by the terms of the contract, were as stated in the complaint. And she alleges that by the terms of the contract, she employed the plaintiff to render services so long only as she choose to employ him; that the plaintiff failed to satisfactorily perform the services for which he was employed ; and that on or about the 29th day of October, 1894, she discharged him from her service. And she further alleges that she then tendered to the plaintiff $67 in payment of the balance due him upon the contract; that he refused to receive it, and “ that the defendant has ever since been ready and willing to pay to the plaintiff said sum, but the plaintiff has hitherto refused to receive the same; that the defendant now brings said sum of sixty-seven dollars into court, ready to be paid to plaintiff, if he will accept the same.” The plaintiff was nonsuited at the trial.
    TP?ra. S. Moore, for pl’ff; Charles A. Hawley, for def’t.
   Bradley, J.

The alleged agreement was not in writing, and the evidence on the part of the plaintiff to prove it was to the effect that on or about the 26th day of March, 1894, the agreement was made for one year’s service, to commence on or about April 1st, when he should be requested by the defendant to do so; that, pursuant to her request afterwards made, he entered upon the performance of the contract on the 29th day of March, 1894. There was a conflict in the evidence of the parties relating to the terms of the contract, and as to the manner of the performance of the service by the plaintiff. The nonsuit of the plaintiff was directed upon the ground that the contract was void by the statute of frauds, as it was not in writing, and, by its terms, not to be performed within one year from the time it was made. This was not alleged as a defense. There has been some conflict in authority on the subject, but the doctrine of the later cases is that it must be pleaded, to render the statute of frauds available as a defense. Hamer v. Sidway, 124 N. Y. 539 ; 36 St. Rep. 888; Wells v. Monihan, 129 N. Y. 161; 41 St. Rep. 409; Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 659; affirming 46 St. Rep. 668; Barrett v. Johnson, 77 Hun, 527 ; Banntyne v. Mining Co., id. 289; 59 St. Rep. 753.

It is urged by the learned counsel for the defendant that the plaintiff failed to prove the contract alleged in the complaint, and for that reason the direction of the nonsuit was supported by the denial alleged in the answer, inasmuch as the contract proved was within the statute. The variance thus referred to is in the fact that the plaintiff did not allege in the complaint a contract which, by its terms, was not to be performed within one year. The counsel cites several of the earlier cases, in which this question did not arise, but where it was said, obiter, that, if the agreement were denied, it was incumbent upon the plaintiff to establish a contract valid within the statute, by evidence competent to prove it. The distinction urged to the effect that the denial by answer of the making of the alleged contract is effectual when, as alleged in the complaint, it does not appear that it would be void if not in writing, although otherwise it would be necessary to plead the statute, is not observed by the cases cited. In those cases in which it was said that the denial would put the plaintiff to the necessity of giving such evidence as would establish an agreement having the formality required by the statute to render it valid, the contracts, as alleged, were invalid, within the statute of frauds, unless in writing. Cozine v. Graham, 2 Paige, 177; Bank v. Root, 3 id. 478; Marston v. Swett, 66 N. Y. 206. Nor is such distinction, observed in any of the cases to which our attention has been called. It- is suggested that it'was in the mind of the court in Crane v. Powell, but nothing appears in that case to require such conclusion. It was not deemed essential, in the common pleas, to make specific reference to the complaint (19 N. Y. Supp. 220), nor was it in the report of the case on the review which followed. If-the complaint had alleged that the contract was for service of the plaintiff to be performed for one year from a day subsequent to that on which the contract was made, the import of the pleading that the contract was valid would have been no less than was the implication in that respect furnished by the allegations, as made in the complaint, of the terms of the contract in question. In either case, for the purposes of the pleading, it would be assumed that the alleged contract was made in such manner as to render it valid. Marston v. Swett, 66 N. Y. 206. There is, in the present case, no variance between the plaintiff’s pleading and proofs, of the character to mislead the defendant to her prejudice, within the meaning of the rule applicable to the subject. Code Civ. Proa § 539. The plaintiff, by his complaint, alleged a contract for one year’s service. The defendant was advised by the complaint that he claimed damages for an alleged breach of such a contract. His evidence tended to prove that there was an unwritten contract to that effect, and that he was not permitted to complete the performance of it. It must be assumed that the defendant knew that there was no written memorandum of the agreement between them, and that she knew as well as the plaintiff whether or not he, by the terms of the contract (whatever it may have been), was to enter upon its performance on the day it was made. And, if not, she could have alleged that fact and there was no difficulty in pleading the statute to the effect that there was no memorandum thereof in writing to support an agreement by its terms not to be performed within one year from the making thereof. It may be observed that no general denial is alleged in the answer. The defendant there admits that on or about the 29th day of March, 1894, she made a contract with the plaintiff for the performance of services by him, but denies that the contract was as stated in the complaint. The controversy, as alleged by the parties, in respect to the terms of the contract, had relation only to the stipulated period of time for performance. And the time when it appeared that the plaintiff commenced performance of the services corresponds substantially with the time when the defendant admits the contract alleged by her was made. The view here taken is that, by reason of the omission of the defendant to plead the statute of frauds, the court erred in directing the nonsuit.

The plaintiff’s counsel urges, as a further reason why the non-suit should not have been directed, that the tender was ineffectual as a defense, because the amount was not paid into court. It is true that, when a tender is made before action commenced, it may be treated as a nullity, unless the money is paid into court, and notice to that effect is given with the answer alleging the tender as a defense. But that is a matter of practice, and, if the answer is received and retained without raising the objection to the omission, the plaintiff may be deemed to have taken issue upon the plea of tender, and waived the irregularity. Sheriden v. Smith, 2 Hill, 538; Wilson v. Doran, 110 N. Y. 101; 16 St. Rep. 852. And if any objection to the alleged tender, or its effect as such, was available to the plaintiff at the trial, none was raised thereby him. Becker v. Boon, 61 N. Y. 317. For these reasons, no question in relation to the tender is necessarily here for consideration.

The motion for a new trial should be granted, costs to abide the event. All concur.  