
    David Jonap, Respondent, v. Abraham P'reger et al., Appellants.
    (Supreme Court, Appellate Term,
    May, 1908.)
    Frauds, Statute of: Agreements not to tie performed within one year — Contracts to he performed one year from future day: Pleading, evidence and trial — Pleading statute as a defense — Necessity — When pleadings are oral.
    A parol contract of employment for one year to commence the day after the contract is made is void under the Statute of Frauds.
    Where pleadings are oral the defendant may rely upon the Statute of Frauds as a defense though not pleaded.
    Appeal from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, rendered in favor of the plaintiff after a trial before the court and a jury.
    H. Lionel Kringel (Frank Walling, of counsel), for appellants.
    David Friedmann, for respondent.
   Giegeeioh, J.

The action is brought to recover damages for the wrongful discharge of the plaintiff. The pleadings were oral, the allegations being simply breach of contract. wrongful discharge, and the answeir being general denial and justification of the discharge.”

The plaintiff testified that, on the 23d day of March, 1901, he observed, on reading his paper, that such was the date, and in the afternoon he went to the defendant Preger and said to him: My contract expires to-day, so I want to know about the future; ” to which, as he testified, the defendant Preger replied: “ Well, Mr. Jonap, we are perfectly satisfied with you and I will renew your contract from to-day for another year, the salary to remain the same.”

At the close of the plaintiff’s case, the defendants’ counsel moved to dismiss the complaint' on the ground that the contract proved was within the Statute of Frauds, specifying further that, as March twenty-fourth was Sunday, the contract did not commence until March twenty-fifth. It is not necessary to determine whether the contract should be treated as beginning on March twenty-fifth or on March twenty-fourth, because, in either event, it, by its terms, was not to be performed within one year from the time it was made and consequently came within the statute.

In Billington v. Cahill, 51 Hun, 132, it was held that an oral contract for the employment of a person for the term of one year, the employment to commence on the following day, was void. A like ruling was made in Levison v. Stix, 10 Daly, 229. See also Oddy v. James, 48 H. Y. 685; Am-burger v. Marvin, 4 E. D. Smith, 3931; Blanck v. Littell, 9 Daly, 268; Hones v, Homer, 2 Hilt. 116; Hartwell v. Young, 67 Hun, 472; Booker v. Heffner, 95 App. Div. 84.

An attempt is made in this case to argue that the additional year contracted for was to begin on the twenty-third day of March, but the evidence does not support such a claim. In order to hold that the new year began on the twenty-third, it would be nécessary to hold that the new contract rescinded the old contract, so far as the unexpired portion of the period covered by it was concerned, and that the new contract took effect before the termination of the old one and superseded it. There is nothing in the language testified to that would warrant such a construction. The plaintiff, according to his own testimony, said to one of the defendants that his contract expired that day; and the defendant’s reply was that he would renew the contract for another year from that day.

I cannot distinguish the case from Billington v. Cahill, supra, and Levison v. Stix, supra. The underlying principle governing all these cases is that, if the contract for the year’s services is made before the year begins, whether a month or a day before makes no difference, a writing is necessary. In Levison v. Stix, supra, the question was whether a hiring on December thirty-first for one year, to terminate on December thirty-first of the following year, was within the statute; and the court held that it was, observing that it was clear’ that the employment was not to commence until the first of January. An employment for a period beginning on the thirty-first of December and ending the thirty-first of December of the following year would not be an employment for a year, but for a year and a day.

So, in the present case, the then existing term of employment ended on March twenty-third and would not expire until the end of that day. Any additional term would not begin until March twenty-fourth ;• and the additional year contracted for would expire, not on March twenty-fourth, but on March twenty-third of the following year.

Only one point remains to be considered. The Statute of Frauds was not set up as a defense; but, where the pleadings are oral, as they were here, it has been held that the defendant can rely upon the statute, although not pleaded. Booker v. Heffner, supra.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Gildebsleeve, J., concurs.

Gbeesbaum, J. (concurring).

Plaintiff testified that, on March 23, 1907, the defendants renewed for another year their contract which was expiring that day.

It is obvious that it was not agreed that the old contract was to be deemed terminated before March twenty-third, but that the new agreement of employment for one year was to begin subsequently to March twenty-third, a circumstance that brings the case within the Statute of Frauds and precludes a recovery.

I concur in a reversal.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  