
    HORACE KELLOGG and another, Respondents, v. GEORGE WITHERHEAD, Appellant.
    
      Statute of frauds.
    
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to recover the price of a quantity of hams alleged to have been sold to the defendant by the plaintiffs. The General Term held (following Bates v. Coster, 8 S. C. [1 Hun), 400), that the agreement between the parties constituted a contract for the sale of the hams, and not one for work and labor to be performed upon them; and that, as the requirement of the statute of frauds had not been complied with, the contract was void, and could not be enforced.
    
      Magone & Holbrook, for the appellant.
    
      L. M. & L. K. Soper, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., and Boardman, J.

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