Hasbrouck v. Dutcher — 138 N.Y.S. 376

Majority

p. 376

HASBROUCK et al. v. DUTCHER.

(Supreme Court, Appellate Division, Third Department.

November 13, 1912.)

Headnote

Account, Action on' (§ 8*)—Pleading and Proof—Amount of Recovery.

Plaintiff having proved sale and delivery of the articles comprising the account, and that an itemized statement thereof, showing a certain balance, had been shown defendant, who stated the account was correct, and the statement being then received in evidence, and plaintiff at the .close of his evidence having moved to amend the complaint to conform to the proof, and defendant having consented thereto, and the statement having then again been received in evidence, without objection that it had not been pleaded, and defendant having offered no evidence,

♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep*r Indexes

p. 377

plaintiff should have judgment for the amount of the statement, less an item not due at commencement of the action.

[Ed. Note.—For other cases, see Account, Action on, Cent. Dig. §§ 18-28, 30; Dec. Dig. § 8.*]

Appeal from Judgment on Report of Referee.

Action by Malinda Hasbrouck and another against William V. Butcher. From a judgment entered on report of a referee, plaintiffs appeal. Modified and affirmed.

Argued before SMITH, P. J., and KELLOGG, HOUGHTON, BETTS, and LYON, JJ.

Gettner, Simon & Asher, of New York City, for appellants.

G. E. Phillips, of Ft. Plain, for respondent.

We think that the referee erred in excluding the items of $10.50 for casks and $77.50 for unpaid checks and protest fees. The item of $52.37, amount of sales of April 22d, was properly excluded, as not being due at the time of the commencement of the action.

Upon the trial the plaintiffs proved the sale and delivery of the articles comprising the account, and that an itemized statement thereof, showing the balance to be $186.44, had been shown to the defendant, who stated that .the account was correct, which statement was then offered and received in evidence, and at the close of the evidence the plaintiffs moved to amend the complaint to conform to the proof, to which defendant consented. The said statement of account was then again offered in evidence, received, and marked as an exhibit, without objection that it had not been pleaded. The defendant offered no evidence whatever. The referee awarded judgment in favor of plaintiffs for $47.61, the amount of the plaintiffs’ claim, excluding the three items above referred to, and awarded costs to defendant.

We think the referee erred in excluding the items of $10.50 and $77.50, and that upon the undisputed facts he should have included such two items in his award, and should have awarded judgment to the plaintiffs against the defendant for the amount of plaintiffs’ claim, less $52.37—that is, for the sum of $134.07—with interest from June 19, 1911, with costs, and that the judgment appealed from should be so modified, and, as so modified, affirmed, with costs of appeal to plaintiffs. All concur.