Deakins v. Herz — 142 N.Y.S. 466

Majority

p. 466

DEAKINS v. HERZ.

(Supreme Court, Appellate Term, First Department.

June 24, 1913.)

Headnote

Account Stated (§ 19^[1] )—Documents Constituting.

A letter written by plaintiff on January 29, 1912, to defendant, stating plaintiff’s version of tbeir mutual accounts, was evidence that plaintiff did not accept defendant’s statement of their accounts, so as to rebut a

p. 467

claim that defendant’s letter of January 21st, conceding that a certain amount was due,- constituted an account stated.

[Ed. Note.—For other cases, see Account Stated, Cent. Dig. §§ 91-93; Dec. Dig. § 19.*]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Virginia De'akins against Dora Herz. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued June term, 1913, before SEABURY, PAGE, and BIJUR, JJ.

Henry K. Heyman, of New York City, for appellant.

Bennet & Cooley, of New York City, for respondent.

Plaintiff sues on an account stated for $250.75. Her testimony and the exhibits offered in her behalf fail to show anything which could be in any manner construed as an account stated between the parties.

On January 29, 1912, plaintiff wrote the defendant a letter, which stated plaintiff’s version of their mutual accounts. This disposes of any possible claim that defendant’s letter of January 21st, conceding that $250.75 was due, constituted an account stated, because it is evidence, as the record stands, that plaintiff did not accept defendant’s version of the account.

_ It appears, however, on the appeal, that respondent relies on interviews with the defendant said to have occurred since these letters were exchanged; but there is no evidence as to those interviews, except that of defendant, and in that evidence there is nothing to show an account stated.

Judgment reversed, and new trial granted, with costs to appellant to. abide the event. All concur.