
    William Schultz, App’lt, v. Simon Cohen, Resp’t.
    
      (Buffalo Superior Court, General Term,
    
    
      Filed July 30, 1895.)
    
    1. Pleading—Statute of frauds.
    Where the invalidity of the contract sued upon does not appear upon the face of the complaint, it is incumbent upon the defendant to plead the statute of frauds as a defense, or be held to have waived it.
    3. Same—Original undertaking.
    A promise by the owner of the building to pay the subcontractor, who has refused to proceed by reason of the contractor’s failure to pay according to the contract, if he would go on and finish the work, constitutes an original undertaking on the owner’s part to pay the subcontractor in accordance with the terms of the contract.
    Appeal from a judgment, dismissing the complaint.
    
      Vlinion B. Gibbs, for app’lt; Willard Saperstone, for resp’t.
   Hatch, J.

The only question presented bjr counsel for the court’s consideration on this appeal is that the contract sued upon is void by the statute of frauds. The complaint sets forth a cause of action for materials furnished, and work, labor, and services performed by plaintiff for defendant, at his request, in and about the building of a house at 23 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 plea the statute as a defense, or be held to have waived it. Wells v. Monihan, 129 N. Y. 161, 41 St. Rep. 409; Crane v. Powell, 139 N. Y. 379; 54 St. Rep. 659.

If the plea had been interposed, it would not have availed defendant, as the contract proved upon trial was not obnoxious to the statute. The proof showed that plaintiff had contracted with a third party to do 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.

All concur.  