Nicoll v. Haas — 5 A.D. 206

Majority

p. 206

Henry D. Nicoll, Appellant, v. Anna L. Haas, Respondent.

Headnote

Reference —-when an account stated is not pleaded — effect of a denial.

In an action brought to recover for upwards of forty items of professional service rendered by the plaintiff, a physician, and his two assistants, to three different persons, the plaintiff, after alleging facts constituting a cause of action for professional services, stated that he had rendered bills therefor which had been agreed to, and added the words “ All of which stands as account stated by bills rendered and agreed to.”

1-Ield, that the case was one in which a reference should be ordered;

That the statement in question, “all of which stands as account stated,” etc., was irrelevant and unnecessary, and amounted to nothing more than the plaintiff’s conclusion as to the effect of a part of his evidence, and did not change the action into one for an account stated;

That although the defendant had admitted in the words of the complaint that ‘ ‘ certain ” services had been rendered by the plaintiff, yet, having denied any knowledge or information sufficient to form a belief as to whether, as alleged in the 'complaint, “the said services and disbursements are shown in detail ” in the bill of particulars annexed thereto, she had put in issue the question as to the rendition of the items of service, and could not successfully claim that the issue related solely to their value.

Appeal by the plaintiff, Henry D. Nicoll, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1896, denying his motion for an order directing that the issues in the action be referred to a referee to hear and determine the same.

Edward C. Perkins and Henry H. Abbott, for the appellant.

Frank H. Knight, for the respondent.

The complaint embraces two causes of action.

The plaintiff’s first cause of action is not upon an account stated. It is for professional services rendered by the plaintiff, a physician, and his two assistants. Under the averments upon that head, the plaintiff will be required to prove every one of the numerous items of his special bill of particulars. After fully alleging the facts constituting his cause of action for these professional services, the plaintiff adds these unnecessary and irrelevant words: “All of which stands as 'account stated by bills rendered and agreed to.” The defendant claims for these words the effect of a formal plea of an account stated.

But there is here no allegation that an account was stated between the parties. The statement is that certain evidential incidents “ stand ” therefor. The words really amount to nothing more than the plaintiff’s conclusion as to the effect of a part of his evidence. Having fully stated his real cause of action, he adds that he has rendered bills therefor which were agreed to, and that thus this cause of action “ stands as account stated.” This is pleading evidence and a conclusion therefrom. But it is not a substantial plea of an account stated.

Upon the merits, the case is within the principle of Richards v. Stokes ( 1 App. Div. 305 ).

The items in the bills which constitute the two causes of action are upwards of forty. The defendant has put the rendition of the items of services in issue (for the purposes of the trial) as well as their value. She admits that plaintiff rendered “ certain ” services, and thus, it is true, admits the averment on that head, as phrased in the complaint. But she does not admit the “ services and disbursements ” which, as the complaint states, are shown in detail in the bill of particulars, thereto annexed and made a part thereof. On the contrary, she denies any knowledge or information sufficient to form a belief as to whether “ the said services and disbursements are shown in detail” in said bill of particulars. Thus, we have not only a regular physician’s account, and that a long one, properly itemizing each visit, but an account which covers services rendered separately to three persons by the plaintiff and his two assistants. The defendant contends that the items of service are undisputed and that the

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issue relates solely to their value. But in this she is not borne out by the pleadings and the affidavits; nor did she offer a stipulation to admit all these items and rest her defense solely upon their value.

ITpou the case as presented the action is upon the plaintiff’s account and its examination is the immediate object of the action.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a reference granted.

Rumsey, Williams, Patterson and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion for reference granted.

Cases cited

Richards v. Stokes 1 App. Div. 305 N.Y. App. Div. 1896-02-07 p. 206