¶1When the complaint sets forth a contract, and the answer admits the allegation, the defendant must specially plead the statute of frauds, or it will furnish no defense (Duffy v. O'Donovan, 46 N. Y. 226; Marston v. Swett, 66 N. Y. 206). There is no plea of the statute of frauds in the answer, and, therefore, even if the employment of the plaintiffs by the defendant ought, by the terms of that statute, to have been in writing (as the defendant-erroneously contends), the want of a writing would not bar the plaintiffs from a recovery.
¶2The referee properly decided that the evidence was entirely insufficient to establish that the plaintiffs and the defendant combined to violate the gaming act by gambling for differences in the price of wheat. There was evidence —evidence that the referee had a right to credit— that the wheat was to be actually delivered.
¶3Neither in his answer nor in his requests for findings did the defendant ask for a different measure of damages from that which was adopted by the referee. It is possible that, had the attention of the referee been called to the matter, he might have awarded less to the plaintiffs, and given to the defendant the benefit of a liberal application of the rule laid down in Baker v. Drake (53 N. Y. 217). But, at the ar*89gument of the appeal, it is too late to raise questions as to the quantum of damages that ought to have been presented to the referee. Besides, as the referee well says, there is no proof that the defendant wished or intended to replace the wheat. It may very well be that, fearing a further decline in the price, he acquiesced in the wisdom of the plaintiffs’ action in selling the wheat. If that were the case, the correctness of the referee’s judgment is beyond impeachment.
¶4Larremore, Ch. J., and J. F. Daly, J., concurred.
¶5Judgment affirmed, with costs.