
    Richard N. Post, Resp’t, v. Butler Brothers, App’lts.
    
      (New York City Court, General Term,
    
    
      Filed January 12, 1895.)
    
    Pleading—Statute of frauds.
    When the complaint does not disclose an agreement invalid upon its face, the defendant must take the objection by answer ; and, if it is not taken that way, it is deemed to have been waived.
    Appeal from a judgment in favor of plaintiff.
    
      Kneeland & Stewart, for app’lts ; J. E. Ludden, for resp’t.
   Ehrlich, C. J.

The action was by the plaintiff to recover damages for alleged wrongful discharge. The main questions litigated were—First, whether the hiring was by the year; and, second, whether the defendants were authorized to discharge the plaintiff before the expiration of the term stated. The jury found on both issues in favor of plaintiff, on evidence which satisfactorily sustains their finding.

The defendants urge that the contract was one which, by its terms, could not be performed within a year, and was therefore void by statute. The rule is that when the complaint does not, as in this case, disclose an agreement invalid upon its face, the defendant must take the objection by answer, and, if not taken that way, it is deemed to have been waived. The defendants did not plead the statute, and thereby waived the benefit of it. Porter v. Wormser, 94 N. Y. 431, 450 ; Hamer v. Sidway, 124 N. Y. 538, 548 ; 36 St. Rep. 888; Wells v. Monihan, 129 N. Y. 161; 41 St. Rep. 409.

The exceptions taken appear to be without merit. The case went to the jury on a fair charge, and their verdict was for the damages legally assessable. The judgment must therefore be affirmed, with costs.

All concur.  