13 Misc. 638 | The Superior Court of the City of New York and Buffalo | 1895
The only question presented by counsel for the court’s consideration on this appeal is that the contract sued upon is void by the statute of frauds. The complaint sets forth a cause of action for materials furnished, and work, labor, and services performed, by plaintiff for defendant, at his request, in and about the building of a house at 23 Union street, in the city of Buffalo. The answer is a general denial. Upon the trial, defendant sought to amend his answer by a plea of the statute of frauds. This was denied, and the case is therefore to be disposed of on the issue as originally framed. The invalidity of the contract sued upon did not appear upon the face of the complaint. It was therefore incumbent upon defendant to plead the statute as a defense, or be held to have waived it. Wells v. Monihan, 129 N. Y. 161, 29 N. E. 232; Crane v. Powell, 139 N. Y. 379, 34 N. E. 911.
If the plea had been interposed, it would not have availed defend