Majority
p. 789KRAMER et al. v. ESSELSTYN. (Supreme Court, Appellate Term, First Department. June 26, 1916.) Argued June term, 1916, before GUY, BIJUR, and PHILBIN, JJ.
Headnote
Account Stated @=>19(3)—Evidence—Judgment.In an action for the value of goods sold and delivered, amended to set up a cause of action on an account stated, where no proof was offered as to the character and value of the goods alleged to have been sold and delivered, or as to the balancing and rendering of an account, coupled with either an express or implied assent thereto, defendant on motion therefor, was entitled to judgment.
(Ed. Note.—For other cases, see Account Stated, Cent. Dig. § 93; Dec. Dig. @=>19(3).]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Isaac Kramer and another against Jacob B. Esselstyn. From a judgment of the Municipal Court in favor of plaintiffs, entered by direction of the court after a trial without a jury, defendant appeals. Judgment and order reversed.
Louis T. Noonan, of New York City, for appellant.
Emanuel J. Livingston, of New York City, for respondents.
Plaintiffs sued to recover the value of goods sold and delivered. On the trial, over the objection and exception of defendant’s counsel, plaintiff’s counsel was allowed to amend, so as to set up a cause of action on an account stated. No proof was offered as to the character and value of the goods alleged to have been sold and delivered; nor is there any proof of the balancing and rendering of an account, coupled with either an express or implied assent thereto, such as is necessary to make out an account stated. Defendant’s motion for judgment in favor of the defendant should therefore have been granted.
Judgment and order reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.