#### Sam Sheingold, Appellant, *v.*Alfred Baer, etc., Respondent.

Second Department,

June *2,*1911.

Master and servant — contract of employment — pleading — amendment to set up Statute of Frauds.

Where in an action by a servant for breach of a contract of employment plaintiff testifies that the duration of the agreement, which was oral, was to be one year, and that he did not go to work until the day after it was made, it is error to set aside a verdict in his favor which is supported by a fan- preponderance of the evidence on the ground that the court should have allowed the defendant, who had alleged in his answer that the contract was terminable at pleasure, to amend by setting up the Statute of Frauds.

Accepting plaintiff’s testimony as true, the contract was not one which by its terms could not have been performed within one year from the making thereof, and if there was any ambiguity on the point, it was for the jury to determine when the contract began and terminated.

Appeal by the plaintiff, Sam Sheingold, from an order of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 6th day of February, 1911, setting aside the verdict of a jury in favor of the plaintiff.

*Stone & Chugerman,*for the appellant.

*Edwin Otterbourg [Charles A. Houston*with him on the brief], for' the respondent.

Per Curiam:

The verified complaint alleged that on or about the 14th day of May, 1910, plaintiff and defendant entered into an agreement. *“*whereby the defendant employed the plaintiff as foreman or assistant in the defendant’s factory for a term of one year from said day at the agreed salary or compensation of $18.00 per week for the first three weeks of said term and for the balance of said term the sum of $22.00 per week % 3⁄8 3⁄8 on or about the 23rd day of May, 1910, the defendant wrongfully and arbitrarily discharged the plaintiff,” etc. . The defendant put in a general denial of the contract, and set up *494as a separate defense that the contract was for an employment at three dollars per day, j terminable at pleasure, and a second separate defense not necessary to he stated.

Upon the trial, upon ¡cross-examination of the plaintiff, it appeared that the agreement was made on Monday, May 16, 1910, and that upon that day all of the terms theréof were.settled, one of which was that the duration of the contract should he one year. The, defendant moved to amend his -answer by setting up the Statute of .Frauds, and subsequently moved the court to dismiss the complaint on the ground that the contract was void under the Statdte of Frauds. These motions were denied and the jury brought in a verdict for $500 in favor of the plaintiff, whereupon the defendant moved for a new trial upon the ground that he should have been permitted to amend his answer, and that the verdict was contrary to law, on the like ground. This motion was granted, and the plaintiff appeals from the order, j '■

■ The plaintiff sustained the burden of proof, and by a fair preponderance of the evidence established the agreement set. forth in the complaint, ánk the trial judge was not justified in setting aside the verdict upon that ground. Neither was he justified upon the ground specified in. his memorandum, namely, that the amendment should have been allowed, and' this for the reason that fipon plaintiff’s evidence in the case the contract was not one jvhichby its terms could not be performed within one- year from the making thereof. (Pers. Prop. Law [Consol. Laws, chap. |tl; Laws of 1909, chap. 45], § 31.) It is true that plaintiff did not actually begin work until the following day, but there is nc> evidence from which the jury could find that the agreement did not terminate on the 16th day. of May, 1911. In such case the agreement need not be in writing. *(Schmerenbeck*v. *Funke,*45 N. Y. St. Repr. 30.) "We think •there was no ambiguity upjon this point, but if so, it was for the jury to determine when the contract of employment began and when it terminated. *(Closson*v. *Thompson Pulp & Paper Co.,*112 App. Div. 273.) Defendant was.not deprived of any right by the - refusal of the courjt to permit the amendment, and it was error to set aside the verdict and grant a new trial.

The order- appealed, from should be reversed, with costs, and *495the verdict of the jury and the judgment entered thereon should he reinstated.

Jenks, P. J., Hirschberg, Burr, Woodward and Rich, JJ., concurred.

Order of the Muncipal Court reversed, with costs, and the. verdict of the jury and judgment entered thereon reinstated.