Muller v. S. Aronson & Co. — 88 N.Y.S. 1006

Majority

p. 1006

MULLER v. S. ARONSON & CO.

(Supreme Court, Appellate Term.

June 23, 1904.)

Headnote

1. Account Stated—Evidence—Sufficiency.

In an action by an assignee of an account for labor and materials, testimony by the assignor that he presented a bill, and defendant said he would send a check—such testimony being denied by defendant—is' too indefinite, and insufficient to support a judgment for an amount even greater than the claim.

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

Action by Anton Muller against S. Aronson & Co. From a judgment for plaintiff, defendants appeal. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ.

Joseph I. Green, for appellants.

Feeney & Kornblueh, for respondent.

Upon oral pleadings, the plaintiff sought recovery for work, labor, and services and materials furnished by his assignor, and furnished an itemized statement of the particulars of his claim, totaling the sum of $149. With the exception of two particulars—the stands and motors—there is no evidence of items, labor, or value to support the claim. -In fact, with the exception of the motors, the receipt of the remaining items was denied. The testimony of the assignor to the presentation of a bill for $149, and to a statement of Mr. Aronson that “I am going to send a check after the 1st”—by him in each regard denied—is clearly too indefinite and insufficient to 'support a judgment in favor of the plaintiff for an amount even greater than his claim.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.