Tuck v. Rottkowsky — 93 N.Y.S. 1112

Majority

p. 1112

TUCK v. ROTTKOWSKY.

(Supreme Court, Appellate Term.

May 23, 1905.)

Headnote

1. Account Stated—Issues.

A judgment for defendant in an action on an account stated is no bar to an action based on the matter in reference to which it was claimed there was an account stated.

2. Evidence—Best Evidence.

An objection to questions to a witness, in reference to the issues in another action, that they did not call for the best evidence, was good.

Appeal from Municipal Court, Borough of Manhattan, Eighth District. '

Action by Jacob Tuck against Magdalena Rottkowsky. From a judgment for defendant, plaintiff appeals. Reversed.

' Argued before SCOTT, P. J., and TRUAX and DOWLING, JJ.

Herbert J. Hindes, for appellant.

Otto Kempner, for respondent.

The complaint should' not have been dismissed. The action in the Municipal Court of the Borough of Brooklyn was not an adjudication of the question, at issue in this action. That action was brought on an account stated. It is well settled that in such an action the only question to be determined is whether there has or has not been an account stated. Volkening v. De Graaf, 81 N. Y. 268 , and Derleth v. De Graaf, 51 N. Y. Super. Ct. 369 . It was held in the case last above cited that a judgment against the plaintiff upon a cause of action founded on an account stated is not a bar to an action for goods sold and delivered, although such sale and delivery was the subject in reference to which it was claimed there was an account stated. In reaching this conclusion, we have taken it for granted that there was competent evidence in the case showing that the plaintiff had brought an action on an account stated in the Municipal Court of the Borough of Brooklyn, and that that action related to the services mentioned in the complaint in this action, although neither the complaint nor the judgment roll in the action in the Municipal Court in the Borough of Brooklyn was offered in evidence. If the objection to the questions on cross-

p. 1113

examination in reference to the action in the Municipal Court in the Borough of Brooklyn had been that those questions did not call for the best evidence, they would have been well taken.

The judgment appealed from is reversed, with costs to the appellant to abide the event. All concur.

Cases cited

Volkening v. DeGraaf 81 N. Y. 268 N.Y. 1880-06-01 p. 1112
Derleth v. Degraaf 51 N. Y. Super. Ct. 369 N.Y. Super. Ct. 1885-03-02 p. 1112