Kellogg, J.:
The complaint' alleged a contract which ’ was to be performed within a year. While it alleges that it was made on or about April twenty-fifth, it alleges the contract as for a year from that date. It left the -precise day when the- contract was made somewhat uncertain, but alleged a contract for a year’s service from that day, *275when it was ascertained. Therefore, within Fanger v. Caspary (87 A.D. 417" court="N.Y. App. Div." date_filed="1903-07-01" href="https://app.midpage.ai/document/fanger-v-caspary-5193992?utm_source=webapp" opinion_id="5193992">87 App. Div. 417) and Booker v. Heffner (95 id. 84), the defendant was not in default in failing to plead the statute, but could avail himself of that defense when the proof showed a different contract than the one alleged or fairly foreshadowed, and when that difference brought the contract within the statute. Bennett v. Mahler (90 A.D. 22" court="N.Y. App. Div." date_filed="1904-01-15" href="https://app.midpage.ai/document/bennett-v-mahler-5194357?utm_source=webapp" opinion_id="5194357">90 App. Div. 22) does not change the rule in the Fanger case, or control this case. There the contract was alleged as made on or about January 1,1902, for the year 1902. The proof showed the contract made December thirtieth,, which was strictly within the allegation. The court held that the complaint indicated a contract which might be within the statute, and that the defendant should have pleaded that defense, and suggested an amendment to the answer, but the defendants elected to rest upon the position that the contract proved was not within the pleading, and they failed. Here the contract' was made April twenty-fifth, as alleged, for a year, but it is not clear when the year was to begin. If the year began April .twenty-fifth, the contract was valid; if Hay first, it was void. The order setting aside the verdict recites that the contract proven was not- pleaded and was void within the Statute of Frauds, and that the complaint should have been dismissed for that reason. A dismissal of the complaint would not have been proper; there was a question of fact for the jury to determine, to wit, whether the contract was to begin April twenty-fifth or May first. The plaintiff’s testimony was ambiguous, and it was for the jury and not for the court to determine its true meaning. But it is evident from the record and the statements in the order that the trial judge felt that the rulings of the court, the denial of the motion to amend and the charge to the "jury had caused a mistrial and prevented the defendant from availing itself of-a defense which it tried to urge, and which the court upon consideration deemed controlling. It was, therefore, proper to set aside the verdict and grant a new trial. The result is sustained, but not for the reasons stated in the order.
The order should be affirmed, with costs to abide the event.
All concurred, except Cochrane, J., dissenting.
Order affirmed, with costs to abide event.