Pelletreau v. United Electric Light & Power Co. — 62 N.Y. St. Rep. 510

Majority

p. 510

Maltby K. Pelletreau, as Receiver, etc., Resp’t, v. The United Electric Light and Power Company, App’lt.

(New York Common Fleas, General Term,

Filed November 5, 1894.)

Headnote

Pleading—Answer—Statute of frauds.

Unless the defense of the statute of frauds is pleaded, the question whether the contract is, or is not, open to objection under such statute, is not in the case.

Appeal from a judgment of the district court in the city of New York for the second judicial district, rendered by the justice, without a jury, in favor of the plaintiff.

Action upon contract or for work, labor and services.

Charles S. Kellogg, for app’lt.

According to the return of the justice below, the defendant pleaded the statute of limitations and a general denial, no specification of the statute of frauds being made.

Therefore the question, toward which much argument was devoted by the appellant, whether or not the contract in suit was open to objection under the latter statute, is not in tbe case. Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 659

The judgment is, however, successfully assailed for insufficiency of proof, it being in no way made to appear that the sum of $57, the amount for which judgment was rendered, or any other sum, was agreed upon by the parties as the price of the goods in suit, and assuming that the recovery proceeded not upon the contract but upon the claim for work, labor and services and materials furnished, then the absence of any testimony as to their value presents a fatal defect in the evidence given to sustain that claim.

Judgment reversed and a new trial ordered, with costs to abide event

All concur.

Cases cited

Crane v. Powell 139 N. Y. 379 N.Y. 1893-10-03 p. 510