#### BARRETT v. JOHNSON.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

1. Statute of Frauds—Pleading. '

The statute of frauds is not available as a defense at the close of the trial, where it was not pleaded, and evidence of a parol contract was received without objection.

2. Same—Agreement to Answer for Debt of Another.

An agreement by a member of a firm to pay out of his own money additional compensation to an employe of the firm, to induce such employe to continue his services, is not a promise to answer for the debt or default of another.

Appeal from Rensselaer county court.

Action by William J. Barrett against Charles W. Johnson for wages. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

T. F. Doherty (W. F. Hickey, of counsel), for appellant.

F. S. Black, for respondent.

*893HERRICK, J.

The plaintiff brought his action against the defendant, in the justice’s court, to recover the sum of $49, alleging in his complaint that on or about the 1st day of February, 1891, he was in the employ of the firm of Salisbury & Johnson; that, at that time, plaintiff was receiving from said firm a salary of $12 per week; that he then notified defendant, Johnson, that he would no longer work for that amount, and that, unless the said firm would increase his salary to $14 per week, he would quit their employ; that said Johnson then informed him that he-would increase his salary $1 per week from said firm, and he (said Johnson), personally, would pay to plaintiff $1 per week additional, if he would remain in the employ of said firm during a period of six months-from that time; that, about the expiration of said six months, plaintiff spoke to Johnson in regard to his salary, and Johnson said they would continue under the same arrangement for another six months; that the plaintiff continued in the employ of the defendant during the balance of said term, but that the defendant has never paid him the amount of $1 per week, amounting to the sum of $49. The plaintiff recovered judgment against the defendant in the justice’s court, and the defendant thereupon appealed for a new trial in the county court, he haying pleaded a counterclaim for more than $50. At the close of the testimony in the case, the court nonsuited the plaintiff “upon the ground that, from the testimony of the plaintiff, it appears that the contract, if any. entered into between the plaintiff and defendant was a contract to answer for the debt or default of the copartnership firm of Salisbury & Johnson, and that the same .was not in writing, and therefore void, by the statute of fraud.”

The complaint of the plaintiff and the answer of the defendant were both in writing. The defendant, in his answer, did not plead the statute of frauds as a defense, although, as will be seen from the substance of the complaint, as hereinbefore stated, he was fully apprised of the nature of the plaintiff’s claim. Neither was there any objection made by the defendant, upon the trial, to the reception of the evidence establishing the contract by parol. This was-error. The statute not being pleaded as a defense, and the evidence which established the parol contract having been received without objection, the defendant was not in any position to take advantage of the statute at the close of the trial. Crane v. Powell, 139 N. Y. 379, 34 N. E. 911. In addition, however, it may be stated that if the plaintiff’s version of the contract, as given by him upon the trial, is correct, then the defendant did not agree to pay the debt of another, but entered into a contract of his own, and for which he was personally responsible, as the original contractor. The judgment of the county court should be reversed, and a new trial ordered; costs to abide the event. All concur.