Davis v. Fromme — 48 N.Y.S. 474

Majority

p. 474

DAVIS v. FROMME.

(Supreme Court, Appellate Division, First Department.

December 17, 1897.)

Headnote

-Account Stated—What Constitutes.

In an action upon an account stated for hotel accommodations, the only-testimony was that of the hotel manager, who testified that there was a rule that bills Should be delivered weekly, and that he did not remember any objection to them from the defendant. Held insufficient to establish an account stated.

Appeal from special term, New York county.

Action by William Davis against Abraham L. Fromme. From a . judgment on the verdict of a jury, and from an order denying a motion •for a new trial, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.

Jacob Fromme, for appellant.

Adelbert E. Carroll, for respondent.

The action is upon an account stated of a debt for hotel accommodations furnished the defendant by the plaintiff, the proprietor of the Oriental Hotel, in the city of New York. The only witness called was the manager of the hotel. A bill was shown him for the amount of the claim, made out by the manager’s clerk; but was ever delivered to the defendant. It was also alleged that weekly ¡bills were rendered, but the witness was merely able to state that People v. Dorthy, 20 App. Div. 312 , 313, 46 N. Y. Supp. 970 , and cases there was a rule to this effect, and himself remarked that the clerk would have to be called on the point. Nor did the witness know that -the bills, if delivered, were retained by the defendant without objection. He was merely, able to state, “I never remember a word being ^spoken to me in reference to them.” The evidence was in all respects

p. 475

insufficient to establish an account stated, and there was no attempt to prove the amount' of the bill for which a recovery was had.

The judgment and order should be reversed, and a new trial ordered; costs to appellant to abide the event.