McDonald v. Jaffa — 65 N.Y.S. 1059

Majority

p. 1059

MCDONALD v. JAFFA et al.

(Supreme Court, Appellate Division, Second Department.

July 17, 1900.)

Headnote

Limitation' of Actions—Open Account—When Statute Begins to Run.

An account for services rendered by a plumber, extending over a period of about 1% years, and consisting of items on the one side and of payments on the other, and without agreement as to time of payment, is not a mutual, open, and current account, within Code Civ. Proc. § 386, providing that, in an action for a balance due upon such account, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side.

Appeal from municipal court, borough of Brooklyn, Fourth district.

Action by Edward McDonald against Henry Jaffa and another to recover upon an account for services rendered. From a judgment for plaintiff, defendants appeal.

Reversed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

G. J. Belfer, for appellants.

Max Brill, for respondent.

The action is for work, labor, and services in 1891 and 1892. The defendants plead payment, accord and satisfaction, the

p. 1060

statute of limitations, and general denial. The summons was issued on December 20, 1898, and was served on December 21, 1898. Upon trial the court dismissed the complaint as to Ray Jaffa, and gave judgment against Henry Jaffa for $51.97 damages, besides costs. The bill of particulars shows many petty items of plumbing work done on various days, beginning May 2, 1891, and ending on December 29, 1892. It appears that the services (many of them being repairs) were such as ordinarily are rendered "by a plumber to a householder as occasion requires. There is no proof of any agreement as to time of payment, or that the work was performed under a continuous contract. Moreover, it appears that bills for parts of the work were rendered from time to time. The statute of limitations was a bar to all of the items save that of December 29, 1892, unless the defendant had made it unavailable. The learned trial justice held that payment on account had been made within six years, and that therefore the statute did not apply. Even considering the account as a totality, I cannot find any evidence of such payment. The plaintiff, when asked to state what work was done within six years immediately before the commencement of the action, answered: “The last work done on Mr. Jaffa’s house was on December 29, 1892; repairing leak under sink; two dollars and ninety-eight cents.” When asked on cross-examination whether he remembered the last time a payment was made to him, which, “according to his bills, was twelve dollars and seven cents,” he answered: “He [the defendant] paid that in his own rooms after my bookkeeper called at his house a number of times. He paid that to me personally. He'paid it at his rooms, in his house.” This payment is evidently that stated in the last credit on the last bill of particulars, under the date of December 11, 1892. Here is not a balance due upon a mutual, open, and current account, under section 386 of the Code of 'Civil Procedure; for the account consists of but items upon the one side, and of payments upon the other. Ross v. Ross, 6 Hun, 80 ; Green v. Disbrow, 79 N. Y. 1 .

The judgment against Henry Jaffa must be reversed, and a new trial must be ordered. The judgment as to Ray Jaffa is affirmed.

Judgment of the municipal court against Henry Jaffa reversed, and new trial ordered; costs to abide event. Judgment as to Ray Jaffa affirmed, without costs. All concur.

Cases cited

Green v. Disbrow 79 N. Y. 1 N.Y. 1879-11-18 p. 1060