Cunard v. Francklyn — 16 N.Y. St. Rep. 771

Majority

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Bache Cunard, App’lt, v. Charles G. Francklyn, Resp’t.

(Supreme Court, General Term, First Department,

Filed June 19, 1888.)

Headnote

1. Account—Bill of items—When adverse party entitled to under Code Civil Procedure § 531.

The account which an adverse party may require to be delivered to him under Code Civil Procedure § 531, is an account containing items. Said section would include an account stated where it contained items.

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2. Same—When not entitled to items- of.

The answer alleged that at a time specified the plaintiff and the defendant, upon a full consideration and discussion in respect to all matters and of the transactions and accounts between them, all of which the plaintiff acquiesced in, settled and adjusted their accounts and it was thereupon agreed between them that the defendant should be considered as indebted to the plaintiff in a sum stated. Held, that the answer did not set up such an account as entitled plaintiff to a copy thereof under said section.

Appeal from order denying motion that the defendant be precluded on the trial of this action from giving any evidence of the account alleged in certain folios of" the answer.

William C. Beecher, for app’lt; John Notman, for resp’t.

This is an action for conversion. The defendant in his answer denies the alleged conversion, and avers among other thing, that securities and cash to a large amount were left in his hands by the plaintiff, under an arrangement by which the defendant was to invest, use, and employ the same in such transactions and enterprises as he should think best for the joint account and risk of the parties.

He further avers that many heavy losses were incurred in the course of such transactions and enterprises, which were paid out of the plaintiff’s property, and with his knowledge; that the defendant, from time to time, rendered the plaintiff statements of account; and that “in or about the months of June and July, 1885, at the city of Hew York, the plaintiff and the defendant, upon a full consideration and discussion in respect to all such matters, and of the transactions and accounts between them, all of which the plaintiff acquiesced in, settled and adjusted their accounts, and it was thereupon understood and agreed between them that the defendant should be considered as indebted to the plaintiff in the sum of $608,396.58, with interest from that time, and that the plaintiff should give him such credit and time to pay off such indebtedness in instalments as he, the defendant, might require for such purpose.”

The plaintiff’s attorneys, claiming to be entitled to a verified copy of the account referred to in the provision above quoted, under section 531 of the Code of Civil Procedure, served upon the defendant’s attorneys a written demand for such account. This demand was not complied with; and thereupon the plaintiff moved at special term that the defendant be precluded on the trial of the action from giving any evidence of such account. The motion was denied upon the exprdss ground that the aforesaid allegations in the answer did not set forth such an account as is referred to in section 531 of the Code.

■ We think the learned judge at special term took a correct view of the answer in this respect. The account which an adverse party may require to be delivered to him under sec

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tion 531, is an account containing items. “It is not necessary,” says that section, “ for a party to set forth in a pleading, the items of an account therein alleged; but in that case he must deliver to the adverse party, within ten days after, a written demand thereof, a copy of the account which, if the pleading is verified, must be verified by his affidavit.”

Of course this language would include an account stated where it contained items; but such does not appear to have been the character of the paper, if any paper was executed, which embodied the agreement pleaded in the answer, to the effect that the defendant should be considered as indebted to the plaintiff in the sum at which the plaintiff’s demand was adjusted. It is true that accounts are alleged to have been considered and discussed in arriving at the adjustment, but those were the data or evidence upon which the parties reached their agreement, and cannot be said to constitute the agreement itself. We do not think : the answer sets up any such account as entitled the plaintiff to a copy thereof under the Code, and the order which he sought to obtain in consequence of the defendant’s failure to serve such copy, was properly refused.

The order appealed from must be affirmed, with costs and disbursements.

Brady and Daniels, JJ., concur.