Fresno Home Packing Co. v. Turle & Skidmore

Seabury, J. (concurring).

The attack which the appellant makes upon the judgment entered upon the verdict of the jury in favor of the plaintiff is without merit. The objection that the original contract was within the Statute of Frauds and not being evidenced by a writing is void is completely answered by the fact that the Statute of Frauds was not pleaded. Crane v. Powell, 139 N. Y. 379. The evidence as to whether there was a modification of the contract was the subject of conflicting testimony, and the proof sustains the finding of. the jury. Both the exceptions upon *84which the appellant relies are clearly worthless. The objection that the plaintiff has not complied with section 15 of the General Corporation Law cannot avail the appellant, as there is nothing in the records before us to show that the plaintiff did business in this State. St. Albans Beef Co. v. Aldridge, 112 App. Div. 803.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.