Majority
p. 562(25 Misc. Rep. 294.) McHUGH v. HARJES. (City Court of New York, General Term. November 18, 1898.) Argued before FITZSIMONS, C. J., and COHLAN and O’DWYER, J J.
Headnote
Statute oe Frauds—Pleading.The statute of frauds, to be availed of, must be pleaded.
Appeal from trial term.
Action by Thomas McHugh against Herman Harjes. From a judgment for plaintiff, defendant appeals.
Affirmed.
Joseph I. Green, for appellant.
Peter R. Gattens, for respondent.
The question for the jury, under the issues raised by the pleadings, was, did the defendant guaranty the payment of the debt in question? That question was decided in the affirmative. The defendant’s liability to pay such debt was established. The defendant upon this appeal contends that the paper writing whereby the defendant guarantied such debt was not subscribed by him as required by the statute of frauds. We think that such contention cannot aid the defendant, because his answer failed to plead the statute referred to, which he should have done, if he wanted to receive the benefit of that statute. '
We think the judgment was right, and must be affirmed, with costs. All concur.