Sherburne v. Taft — 49 N.Y. St. Rep. 771

Majority

p. 771

Henry C. Sherburne, App’lt, v. Edward A. Taft et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

Account stated—Accounting.

Where the parties have settled and adjusted their several claims and

p. 772

agreed upon a balance, for which a note is given, the holder thereof may sue for the balance or upon the note, b.ut an action for an accounting cannot be maintained. «

Appeal from an order dismissing the complaint in an action for an accounting of the proceeds of the sale of one-half of the capital stock of the New York & Boston Dispatch Express Company, and of the Kinsley Express Company, alleged in the complaint to have been made to the Adams Express Company in March, 1888.

D. M. Porter, for app’lt; Elihu Root and S. B. Clarke, for resp’ts.

It may not be at all necessary to add anything to the opinion delivered by the learned justice who tried the cause in the court below. His statement fully presents the facts which were established by the evidence; and it will only be necessary to consider one point of the opinion, which seems to have been misapprehended by the counsel for the appellant. He seems to think that the transaction in Paris between the plaintiff and the defendant Tal't was claimed to have been an accord and satisfaction, and that for reasons specified no such accord and satisfaction was established. This'we do not undertstand to have been the position of the court below in treating of this branch of the case. The court did not hold that the circumstances proven established an accord and satisfaction, but that they did establish that an account was stated between the parties, and the balance due to the plaintiff ascertained, for which the defendant Taft gave his note payable on demand, and that in view of this fact an action for an accounting could not be maintained. Under these circumstances, it is apparent that the plaintiff could sue for this balance, or he could sue upon the note, as he saw fit. But the parties having settled and adjusted their different claims, and having agreed upon a balance, and the party against whom the balance existed having promised to pay the same, and having given his written evidence of debt, in the absence of fraud or mistake this settlement cannot be impeached. The judgment, therefore, should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.