
    Martin Grampp, Resp’t, v. John Watts De Peyster, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 14, 1894.)
    
    Appeal—Statute op frauds.
    The defense of the statute of frauds is not available on appeal, where it was not pleaded; and evidence of the oral agreement was received without objection upon the trial.
    Appeal from a judgment in favor of plaintiff.
    
      Collier, Collier & Browning (C. P. Collier, of counsel); for app’lt; A. Frank B. Chace, for resp’t.
   Herrick, J.

—The referee has found that during the year 1892 the plaintiff, by himself, his agents and employes, did extra work upon a church that was being errected at Madalin, N. Y. (cleaning, painting, etc.), amounting in value, for the labor and material so furnished, to the sum of $290.60; “that such extra work was done at the request and under the direction of the defendant, and under and subsequent to the promise and agreement of the defendant to pay for the same.” Of course, if such findings of fact are correct, the judgment recovered in this case by the plaintiff necessarily follows; but the defendant and appellant contends that such findings of fact are not warranted by the evidence. The defendant contends that the evidence shows that the plaintiff, in truth and fact, was employed by another or others than the defendant, and that the requests and promises made by him are within the statute of frauds,—being promises to pay for the debt, default, or miscarriage of another,—and, not being in writing, are void. It seems to me that a discussion of the evidence in this case, to,determine whether there was an original contract of hiring between the plaintiff and defendant, is unnecessary, because I think it must be conceded that, whatever view is taken of the evidence, it establishes one of two things,-—either an original hiring between the plaintiff and defendant, or a promise or agreement on the part of the defendant to pay the plaintiff for work that he was doing, for which work the defendant was not primarily liable. Whichever conclusion we come to, the judgment must be sustained. If we arrive at the conclusion that it was an Agreement to pay the debt of another, then the defense of the statute of frauds asserted by the defendant is not available to him .now, because he did not raise it in his answer, and the evidence establishing such patrol contract to pay the debt of another was not objected to by him upon the trial. Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 659.

The judgment should be affirmed, with costs.

All concur.  