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Blaut v. Borchardt

67 N.Y. St. Rep. 92 Court N.Y. City Ct. Decision date 1895-04-16 English

Delivered by McCarthy, J.

Contents

Majority

p. 92
Lazarus Blaut, as Assignee, etc., App’lt, v. Max Borchardt, Resp’t.
(New York City Court, General Term,
Filed April 16, 1895.)

Headnote

1. Account stated — Hot conclusive.
An account stated is simply prima facie correct and may be impeached for any error induced by mistake or fraud.
2. Pleading — Counterclaim—Demurrer.
A counterclaim is not demurrable in law on its face, because of the absence of a demand for an affirmative judgment in the answer.
Appeal from an order, overruling a demurrer to a counterclaim.
Jacob Fromme, for app’lt; Isidore Hershfield, for resp’t.

We think the demurrer in this case was properly overruled. The answer, although partially inconsistent, yet was consistent in the fact of the denial of an account stated, the reason therefor being matter of proof, and not pleading. An account stated is not conclusive upon either party, but is simply

p. 93
prima facie, presumptively correct, and may be impeached for any error induced by mistake or fraud. It then loses its force and character. Samson v. Freedman, 102 N. Y. 699 -701; 2 St. Rep. 434 ; Goodwin v. Wertheimer, 99 N. Y. 149 -154.

Again the appellant says thg-t the counterclaims are demurrable in law on their face because the defendant does not demand an affirmative judgment is his answer. But this is not necessary. See Code Civ. Proc. §§ 503, 504, 509. This last section leaves the matter in the discretion of the defendant. In the case at bar the defendant, although setting up many clams, which, when estimated together, would be in excess of the plaintiff’s only seeks to be allowed so much as will equal the plaintiff’s claim. See Code Civ. Proc. § 502, subd. 1; also, see section 501. All the counterclaims appear on the face thereof as having existed at the time of the. commencement' of the action. The defendant can only recover, however, a counterclaim which is due at the time of the making of the assignment, and this is a matter of proof at .the trial.

The order is therefore affirmed, with costs.

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