Lupean v. Brainard (20 A.D. 212, 1897)

Ward, J.:

Some of the earlier cases seem to hold that, if the answer contained a general denial of the contract alleged in the complaint, the plaintiff must establish a valid contract, and if lie gave evidence showing a contract within the Statute of Frauds the defendant was at liberty, under the general denial, to take, that objection, although it had not been affirmatively pleaded in the answer.

Upon this question there is some confusion, however, in the earlier cases, and it is unnecessary to review them.

It was said by Bradley, J., in Smith v. Slosson (89 Hun, 568 ; 35 H. Y. Supp. 548), that there had been a conflict in the earlier cases upon this subject, but the doctrine of the later cases is that it must be pleaded to render the Statute of Frauds available as a defense.

And such is the decided trend of the later cases. ■ (Hamer v. Sidway, 124 N. Y. 538 ; Wells v. Monihan, 129 id. 161; Crane v. Powell, 139 id. 379; Bannatyne v. Florence Milling Co., 77 Hun, 289; Barrett v. Johnson, Id. 527; Cheever v. Schall, 87 id. 32; Schultz v. Cohen, 34 N. Y. Supp. 927; Smith v. Slosson, supra Thelberg v. National Starch Manufacturing Co., 2 App. Div. 173 ; Simi's v. Wissel, 10 id. 323.)

In Schultz v. Cohen (supra) there was a general denial in the answer.

And in Crane v. Powell (supra) the answer, as in the case at bar, admitted certain allegations in the complaint, but denied all other allegations, which included the contract that it was claimed was within the Statute of Frauds. But there was no allegation in the answer'alleging the Statute of Frauds ; that was a case like the one at bar, where the contract was oral, and, by its terms, was not to be performed within one year, and'the plaintiff was permitted to prove without objection-a verbal agreement to the effect set forth in. the complaint, and it was held that a motion to dismiss the complaint on the ground that the agreement, not being in writing, was void under the Statute of Frauds, made at the close of the plaintiff’s evidence, was properly denied. Judge O’Briest says (at p.- 388): “ The present system of procedure is founded upon the idea that litigants should, when possible, know in advance the precise questions they must meet at the trial. When a contract is set out in the complaint as the cause of action, and. the defendant intends to assail it on some special or statutory ground, the general spirit of the system is not complied with unless notice is given of this intention to the opposing party by the pleadings.

“ In the solution of this question the provisions • of the Code should not be overlooked. The statute may be used as a defense to actions on certain agreements. A defense must now be presented either by demurrer or answer. (Code, sec. 487.)

“When the defect in the plaintiff’s cause of action appears on the face of the complaint, the defense must be interposed by demurrer. (Sec. 488.) When the complaint does not, as in this case, disclose an invalid agreement upon its face, but it is, in fact, invalid for some reason, the defendant must take the objection by answer, (sec. 498), and if the objection is"not taken in. either way, the defend-' ant is deemed to have waived it. (Sec. 499.) The conclusion is thus reached that the defendant waived the benefit of the statute, in this case, by omitting to plead it.”

This case further held that the provisions of the Statute of Frauds, declaring contracts void which, by their terms, are not to be performed within one year unless in writing, does not prohibit the making of an oral agreement. It simply creates a new defense and introduces a new rule of evidence ; i.