Hyperlawhypertext legal database Critten v. Vredenburgh 73 N.Y. St. Rep. 592

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Critten v. Vredenburgh

73 N.Y. St. Rep. 592 Court N.Y. App. Div. Decision date 1896-04-14 English

Delivered by PUTNAM, J.

Contents

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p. 592
Defrees Critten et al., Resp’ts, v. Charles W. Vredenburgh, Def't; Manufacturers’ Bank of Cohoes, an Attaching Creditor, App’lt.
(Supreme Court, Appellate Division, Third Department,
Filed April 14, 1896.)

Headnote

Judgment—Confession—Statement.
A statement made by defendant upon confession of judgment that plaintiff performed services for and loaned money to him, that thereafter, at a certain time, there was an adjustment of accounts between them concerning said matters, and a certain sum was found due plaintiff, which defendant promised to pay, sufficiently shows the account stated, so as to sustain the entry of a confessed judgment, under section 1274 of the Code.
Appeal from a judgment entered by confession in favor of plaintiffs and from an order.
Charles F. Doyle, for app’lt; Simpson & Werner (S. W. Rosendale, Zeb. A. Dyer, and A. J. Simpson, of counsel), for resp’ts.

The statement of the defendant upon which th'e judgment in this case was entered (after alleging that between the 1st day of March, 1893, and the 1st day of October, 1895, the plaintiffs, as co-partners in the city of New York, “ loaned and advanced to me divers and sundry sums of money, which I agreed to repay them with interest, and also did and performed work, labor, and services for mein selling merchandise upon commission, and guarantying the accounts for the same”) set forth on the 1st day of October, 1895, there was an adjustment of the accounts between said plaintiffs and defendant concerning the said matters, and the sum of $19,879.02 was found due the former, which the latter agreed to pay, with interest. The statement, therefore, besides the general averment above quoted, as to money loaned and labor and services performed by the plaintiffs for the defendant, alleged facts showing an account stated. 1 Rum. Prac. 312, 313; 1 Abb. Forms, 262. An account stated is conclusive between the parties, unless impeached by fraud or mistake. Lockwood v. Thorne, 11 N. Y. 170 , and cases there cited. The statement, therefore, had as much force as if it had averred an adjustment of accounts on October 1,1895, and,the giving of the note by the defendant to the plaintiffs. A note would have been no more binding and conclusive than an account stated. In this view of the case, the statement was sufficient, as held in Freligh v. Brink, 22 N. Y. 418 ; Ely v. Cooke, 28 N. Y. 365 . These cases were cited with approval by Andrews J., in Harrison v. Gibbons, 71 N. Y. 58 -62.

p. 593
Counsel for the appellant calls our attention to Wood v. Mitchell, 117 N. Y. 439 ; 27 St. Rep. 704 . We do not regard that case as a parallel one. The statement there considered and condemned by the court of appeals contained no averment of an account stated between the parties It alleged no adjustment or settlement. It,was similar to the above-quoted preliminary portion of the statement under consideration, omitting the most important allegation of fact as an account stated. It cannot be held, therefore, that the court of appeals, in Wood v. Mitchell, overruled the doctrine in Freligh v. Brink and Ely v. Cooke, supra, and kindred cases. In Broisted v. Breslin, 5 St. Rep. 67 ; affirmed, 105 N. Y. 682 , a statement averring an account stated, and similar to the one under consideration, was held sufficient; under the provisions of •section 1274 of the Code of Civil Procedure.. The affirmance in the court of appeals was without opinion, and without formally adopting the opinion of the court below. But it has been held in such a case that “it is not to be understood that the affirmance is on grounds substantially different from those taken below.” Higgins v. Crichton, 98 N. Y. 626 . The case of Wood v. Mitchell, supra, on which a statement quite unlike that considered in Broisted v. Breslin was condemned, does not overrule the principle established in the latter case, nor compel us to hold that the statement under consideration is insufficient, under the provisions of section 1274 of the Code of Civil Procedure.

We think the other objection to the judgment suggested by the learned counsel for the appellant were properly disposed of by the court below, and do not require discussion.

The order should be affirmed, with costs.

All concur.

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