Crane v. Powell, 139 N. Y., 379. claimed to be due on the contract for the purchase of the bonds 15 without disclosing whether the contract was oral or written, the plaintiff would have been bound to plead the statute to avail himself of its protection." In that case the plaintiff had recognized the existence of the contract by bringing an action upon it, and it was held that he was not in a position to question the validity of it under the statute. 16 In Hamer v. Sidway (124 N. Y., 538), the action was against the executors of a deceased person upon a verbal promise to his nephew that he would give him a large sum of money at twenty-one, if in the meantime, he would abstain from the use of liquor, cigars, billiards, etc. The promise was confirmed by a letter from the uncle after the boy became of age. It was insisted that the promise was within the statute. After stating that the deceased had waived the defence by his letter and statements subsequent to the time of performance, the court, PARKER, J., delivering the opinion, said: "Were it otherwise the statute could not now be invoked in aid of the defendant. It does not appear on the face of the complaint that the agreement is one prohibited by the Statute of Frauds, and, therefore, 17 such defence cannot be made available unless set up in the answer." In Wells v. Monihan (129 N. Y., 161), the action was upon a written promise to pay the debt of another without expressing any consideration, and it was urged upon the argument here that it was void under the statute. Passing upon that point, Judge FINCH said: "So far as the defence in this case rests upon the Statute of Frauds it must fail for two reasons: No such defence has been pleaded, and it is not raised by the averments of the complaint, and without one or the other of these conditions the defence, if existing, cannot be made available." Without referring to other cases in which the precise point does not seem to have been discussed or noticed, sufficient appears to show the tendency of late decisions in this court. They announce a rule well settled and familiar in analogous The Statute of Frauds is a shield which a party may use or not for his protection just as he may use the Statute of Limitations, the statute against usury, that against betting and gaming, cases. 18 Crane v. Powell, 139 N. Y., 379. 19 and others that might be mentioned. I take it to be a general rule of universal application that the statutes last mentioned are not available to a party unless specifically pleaded, and there is no reason for making the Statute of Frauds an exception to the rule. 20 The present system of procedure is founded upon the idea that litigants should, when possible, know in advance the precise questions they must meet at the trial. When a contract is set out in the complaint as the cause of action, and the defendant intends to assail it on some special or statutory ground, the general spirit of the system is not complied with unless notice is given of this intention to the opposing party by the pleadings. In the solution of this question the provisions of the Code should not be overlooked. The statute may be used as a defence to actions on certain agreements. A defence must now be presented, either by demurrer or answer. (Code, § 487.) When the defect in the plaintiff's cause of action appears on the face of the complaint, the defence must be interposed by 21 demurrer. (§ 488.) When the complaint does not, as in this case, disclose an invalid 'agreement upon its face, but it is, in fact, invalid for some reason, the defendant must take the objection by answer (498), and if the objection is not taken in either way the defendant is deemed to have waived it. ($499.) The conclusion is thus reached that the defendant waived the benefit of the statute in this case by omitting to plead it. 22 It is claimed by the learned counsel for the plaintiff, that the agreement, as pleaded and proven, was not within the statute, since it amounted to a renting of apartments in a city house for business purposes, with board and lodging added, and was, therefore, good as a verbal lease for one year. (Blumenthal v. Bloomingdale, 100 N. Y., 558; Laughran v. Smith, 75 id., 209; Reeder . Sayre, 70 id., 184; Oliver v. Moore, 53 Hun, 472; s. c. affd., 131 N. Y., 589.) It is unnecessary to consider this question, as the conclusion reached with reference to the question of pleading is fatal to the appeal. Milbank v. Jones, 127 N. Y., 370. The judgment should be affirmed. All the judges concurred, except EARL and PECKHAM, JJ., 23 MILBANK. JONES. New York Court of Appeals, Second Division, 1891. [Reported in 127 N. Y., 370.] The defence that the contract sued on was illegal and void, if the facts to establish it do not appear in plaintiff's complaint or evidence, cannot avail defendant under a general denial; but must be pleaded. Action to recover money held in trust. The complaint alleged, in substance, that defendant, as trustee for the plaintiff, had received $5,000, which sum he still continued to hold in trust for plaintiff; that by the terms of the trust plaintiff might terminate it at his election; that plaintiff had caused due notice to be given to the defendant of his election to terminate the trust, and had demanded payment of the $5,000, which was refused. The answer was a general denial. Upon the trial, plaintiff put in evidence a document the first part of which, purported to be a resolution directing the Street Commissioner to make a contract for lighting streets, etc., of the city of New York, with gas. Under this resolution was written the following: V 1 2 "NEW YORK, June 14, 1866. 3 "Received of R. W. Milbank five thousand dollars ($5,000), and also certificate for two hundred and fifty (250) shares of the stock of the People Gas Light Company of the City of New York, number seven (7), the said money and stock to be returned to said Milbank in case the resolution above shall not be passed and take effect before the 10th of July next. It being understood and agreed that said Milbank shall have Milbank v. Jones, 127 N. Y., 370. 4 the right, at his election, in case said resolution shall pass and take effect before the said 10th of July, to purchase back the said stock at any time within sixty (60) days from the time said resolution shall take effect, by paying to me fifteen thousand dollars ($15,000) therefor; and that he shall on his part be bound to purchase the same and pay said fifteen thousand dollars ($15,000) therefor, within said sixty (60) days, at my election. MORGAN JONES. 5 6 7 I assent to and join in the above understanding and agree ment. R. W. MILBANK.” New York, June 14, 1866. Plaintiff also introduced a record of the proceedings of the board of aldermen and board of councilmen, and a veto message by the mayor, showing that the resolution did not take effect before July tenth, together with proof that a demand for a return of the money was made prior to the commencement of the action, and rested. Thereupon the defendant made a motion to dismiss the complaint assigning, among other grounds: That the contract was void because on its face it appeared that its purpose was to improperly influence legislation. This anotion the court denied. The defendant then offered testimony tending to show that the contract was against public policy, to which evidence plaintiff objected on the ground that it was immaterial, incompetent and inadmissible under the answer, because not pleaded. The objection was overruled, and plaintiff excepted. At Trial Term defendant had judgment on a verdict. The General Term of the Superior Court affirmed the judg ment, holding that the contract was void on its face as against public policy. The Court of Appeals reversed the judgment. PARKER, J. [after holding that the agreement was not void on its face, as it did not provide that Jones should assist in procuring the passage of the resolution, or perform any services whatever, but made of him a mere depository of the money]: The answer was a general denial, and the plaintiff insisted on the Milbank v. Jones, 127 N. Y., 370. trial, as he does on this appeal, that not having been informed 8 by the answer that the illegality of the contract would be am issue on the trial, he could not be expected to be prepared nor required to meet it. Under a general denial the rule undoubtedly is that if the illegality appears on the face of the complaint, or necessarily appears from plaintiff's evidence, advantage may be taken of it by defendant, who must also be permitted to controvert by evidence everything which the plaintiff is bound, in the first instance to prove, in order to make out his cause of action. And the cases cited by the respondent in support of the ruling will be found on analysis to come within it. In Russell v. Burton (66 Barb., 539) the contract, as proved by the plaintiff, was for lobby services, and void. In Oscanyan v. Arms Co. (103 U. S., 261), the complaint was dismissed on the opening of plaintiff's counsel because it appeared therefrom that the contract relied on was illegal. In Cary v. Western Union Telegraph Co. (20 Abbott N. C., 333), the plaintiff, in making proof of his contract, introduced evidence showing its invalidity. 9 And in O'Brien v. McCann (58 N. Y., 376); Clifford v. Dam, 10 (81 id., 52); and Griffin v. L. I. R. R. Co., (101 id., 348), the court simply declared the rule that, under a general denial, the defendant may give evidence tending to disprove any fact which the plaintiff is bound to prove in order to recover. But in this case it neither appeared from the complaint or the evidence presented by the plaintiff that the contract was illegal, and as we have already shown when the plaintiff rested the evidenceestablished a cause of action. The general denial put in issue all matters which the plaintiff was bound to prove; nothing He was required to prove the contract entered into by defendant which was, on its face, valid. Having accomplished that he could not be compelled to enter into a controversy over matters not appearing in the contract involving the question of its validity or invalidity because he had not been notified by the answer that the defendant proposed to assert his own participation in that which was a violation of law as a shield against the consequences of his agreement. more. This rule has been enforced so long that it seems unnecessary |