Burnham v. Black — 121 N.Y.S. 616

Majority

p. 616

BURNHAM v. BLACK et al.

(Supreme Court, Appellate Term.

March 10, 1910.)

Headnote

Account Stated (§ 6*)—Assent or Party Charged.

In an action for money had and received by defendants, cotton brokers, a showing that, after defendants executed the last transaction for plaintiff, they repeatedly sent him statements of his account, which he not only retained without objection, but wrote, defendants asking them to hold the stock which they were carrying on a margin for his account, which letters assumed the correctness of the account which the defendants had sent him, established the defense of an account stated.

[Ed. Note.—For other cases, see Account Stated, Cent. Dig. §§ 30-40; Dec. Dig. § 6.*]

Bijur, J., dissenting.

p. 617

Appeal from Municipal Court, Borough of Manhattan,' First District.

Action by Sigourney M. Burnham against John F. Black and others. From a judgment for plaintiff, defendants appeal.

Reversed, and1 new trial ordered. .....

Argued before SEABURY, LEHMAN, and BIJUR, JJ.

Wilson, Barker & Wager (Frank Barker, of counsel), for appellants.

Wentworth, Lowenstein & Stern (Bertram L. Marks, of counsel),, for respondent.

This action is brought to recover for money ‘had and received. The answer pleads a general denial. The plaintiff was-a customer of the defendants, who were cotton brokers. The defendants conducted a series of transactions for the plaintiff. After the defendants executed the last transaction for the account of the plaintiff, they repeatedly sent him statements of his account. The plaintiff not only retained these statements without making objection to them, but wrote the defendants asking them to hold the stock which they were-carrying on a margin for his account. In fact, his letters to his brokers assumed the correctness of the account which the defendants had sent him. The defense of an account stated was abundantly established upon-the trial.

Judgment reversed, and new trial ordered, with costs to the appellants to abide the event.

LEHMAN, J., concurs. BIJUR, J., dissents.