
    RANSOM P. ALGER, Respondent, v. WILLARD JOHNSON, Appellant.
    
      Statute of frauds—when must he pleaded.
    
    It is only when a complaint sets forth a contract, and the answer admits that allegation, that the defendant must plead the statute of frauds. (Moak’s Van S. PI., 505, 555 ; Duffy v. O'Donovan, 46 N. Y., 226.)
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action -was brought for work done and materials furnished by the plaintiff to the defendant. The answer contained a general denial of all the material allegations of the complaint. The defendant claimed that the contract for the work and materials was with one Baker, and that therefore the promise of the defendant to pay therefor was within the statute of frauds, but the court was of opinion that the evidence showed that the employment was by the defendant and not by Baker, and affirmed the judgment.
    
      
      Stephens & Pardee, for the appellant.
    
      H. C. Howe, for the respondent
   Opinion by

Gilbert, J.

Judgment affirmed.  