Uhlhorn v. Hovey — 97 N.Y.S. 1040

Majority

p. 1040

UHLHORN v. HOVEY.

(Supreme Court, Appellate Term.

February 27, 1906.)

Headnote

Account Stated—Issues and Proof.

In an action on an account stated, defendant is not entitled to show under a general denial that plaintiff is indebted to him for matters altogether outside the items, embraced in the account.

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

Action by Gertrude C. V. Uhlhorn against Edwin J. Hovey. From a judgment for defendant, plaintiff appeals.

Reversed.

Argued before SCOTT, P. J., and GIEGERICH and GREEN-BAUM, JJ.

Davies, Stone & Auerbach (Julien T. Davies, Jr., and Ward W. Pickard, of counsel), for appellant.

Frederick Durgan, for respondent.

The action was upon an account stated, the defense a general denial. The only issue presented was as to whether or not there had been an account stated. Unquestionably there had been as to á certain sum of money paid to defendant by plaintiff to be expended for certain purposes. There is no attempt to avoid the account, or to show that it was induced by fraud, or made by mistake. The defendant was, however, permitted, under his general denial, to introduce evidence which, as he claimed, showed that plaintiff was indebted to him for matters altogether outside the matter embraced in the account. This, of course, he should not have been permitted to dó. Such proof cannot bé received in support of a general denial in an action upon an account stated.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.