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Enskew v. Reise

117 N.Y.S. 906 Court N.Y. App. Term Decision date 1909-06-25 English

Delivered by SEABURY, J.

Contents

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p. 906
ENSKEW v. REISE.
(Supreme Court, Appellate Term.
June 25, 1909.)

Headnote

Judgment (§ 253[1] )—Applicability to Issues.
Where plaintiff sued to recover $200 on an account stated, and testified in support of the claim, which defendant contradicted," a judgment for plaintiff for $100 was unauthorized.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. $§ 443, 444; Dec. Dig. § 253.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Ellen Enslcew against Mrs. John Reise. From a Municipal Court judgment for plaintiff,- defendant appeals.
Reversed, and new trial ordered.
Argued before GIEDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.
John F. Harrington, for appellant.
Robert O’Byrne, for respondent.

The action was brought to recover $200 upon an account stated. The plaintiff testified in support of this claim. The defendant contradicted this testimony. The court below has awarded judgment for the plaintiff for $100.

There is no evidence to sustain the judgment. If the plaintiff’s testimony is true, she is entitled to recover judgment for the amount stated to be due in the account. If her testimony is untrue, she has failed to establish an account stated, and her complaint should have

p. 907
been dismissed. Upon the evidence presented, there is no justification for awarding the plaintiff one-half the sum alleged to be due upon the account stated.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.