majority">By the Court, Bockes, J.

The referee was undobtedly correct in holding that the agreement made between the defendant and the plaintiff’s son, for the services of the latter thereafter to be performed, during a period of several years, was void by the statute' of frauds, because not in writing. This precise point was decided in Shute v. Dorr, (5 Wend. 204.) In the case cited, the plaintiff put his son, then aged between fifteen and sixteen years, to live *508with the defendant until he should arrive at the age of tw£nty-one years, to work on his farm; at the expiration of which time he was to pay the son $100, and to give him two new suits of clothes, and in the meantime to provide him with clothing, and to give him common schooling. The son continued with the defendant about three years and a half, when he left the defendant’s employment. Thereupon the father brought an action, claiming to recover for work, labor and services, and had a recovery. The court, per Sutherland, J. remarked that the special agreement- was clearly void by the statute of frauds. The contract on the part of the defendant, was to pay $100 for the services of the plaintiff's son, when he became of age. The son was to serve the defendant for five years, and then the defendant was to pay the $100. It should, therefore, in order to bind the parties, have been evidenced by writings. To the same effect is the decision in Drummond v. Burrell, (13 Wend. 307.) It was also held in the former case, Shute v. Dorr, that the plaintiff had a right to recover upon the quantum meruit for the services of the son, without reference to the special agreement. (Erben v. Lorillard, 19 N. Y. Rep. 299.) It follows from these decisions, that in the absence of any new binding agreement between the parties relative to the services of the plaintiff’s son, he 'could recover upon a quantum meruit for the services performed. But the referee finds in substance and effect, that in January, 1864, it was agreed between the parties, that if the son would enlist as a soldier in the United States service, he should be discharged from further service under the orginal oral agreement, and that the defendant would pay the plaintiff the $80, before agreed 'to be paid, the same as if^he had continued to labor for the defendant for the full term; and that the son thereupon enlisted and went into the service of the United States, under such arrangement. Such must be deemed to be the agreement, considering the *509finding of the referee in connection with the evidence on which such finding is predicated. This agreement, if in fact made, and we must here decree it established, was valid and binding on the parties. The defendant’s promise to pay the $80, had a good consideration, the liquidation of an existing claim, and the enlistment of the plaintiff’s son. The agreement was in no respects illegal. It covered and disposed of any claim the plaintiff could have against the defendant, for the services of his son, which claim, was merged in the new contract. The son volunteered as a soldier, according to the arrangement. Thus the contract was fully performed on the part of the plaintiff and his son; and payment of the $80 by the defendant, alone remained as a just debt to be satisfied by him. In this view of the case, the referee was in error in directing a recovery for a sum exceeding eighty dollars and interest; and the judgment should be reduced accordingly, or reversed. If my associates agree with me in my conclusion above expressed, ample justice may be done by a reduction of the judgment, without a new trial, for the recovery must rest on the agreement above stated, made at the time the plaintiff’s son enlisted into the United Btates service; and if that agreement be taken as the basis of a recovery, the admission of the evidence as to the value of the services, and the error of the referee, (if an error,) in permitting the amendment of the complaint, could not by any possibility work an injury to the defendant. My conclusion, therefore, is that the amount found due by the referee should be reduced to $80, and interest from May 18, 1864; and that with such reduction and modification, the judgment should be affirmed, without costs of appeal to either party.

[St. Lawrence General Term,October 6, 1868.

James, Bosehrans, Potter and Boches, Justices.]

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