Critten v. Vredenburgh , 38 N.Y.S. 542 ( 1896 )

Putnam, J.:

The statement of the defendant upon which the judgment in this case was entered, after alleging that between the 1st day of Hard), 1893, and the 1st day of October, 1895, the plaintiffs, as co-partners in the city of Flew 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 me in selling merchandise for me upon commission, and guaranteeing the accounts for the same,” set forth that, on the 1st day of October, 1895, there was an adjustment of the accounts between said plaintiffs and defendant concerning the said matters, and that 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 ths pilaintiffs for the defendant, alleged facts showing an account stated. (1 Rumsey’s Prac. 312, 313; 1 Abbott’s Forms, 262.)

An account stated is conclusive between the piarties unless' impieached for fraud or mistake. (Lockwood v. Thorne et al., 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 a note by the defendant to the piiaintiffs. A note world have been no more binding and conclusive than an account st ited. In this view of the case the statement was sufficient, as held in Freligh v. Brink et al. (22 N. Y. 418); Ely v. Cooke (28 id. 365). These cases were cited with approval by Andrews, J., in Harrison v. Gibbons (71 N. Y. 58-62).

Counsel for the appellant calls our attention to Wood v. Mitchell (117 N. Y. 439). 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 piarties. It alleged no adjustment or settlement. It was similar to the above-quoted preliminary piortion of the statement under consideration, omitting the most important allegation of fact therein as to an account stated. It cannot be held, therefore, that the Court of Appeals in Wood v. Mitchell overruled the doctrine in Freligh v. Brink et al., Ely v. Cooke (supra) and kindred cases.

In Broisted v. Breslin (5 N. Y. St. Repr. 67;. affd., 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 tó be understood that the affirmance is on grounds substantially different from those taken below.” (Higgins v. Crichton et al., 98 N. Y. 626.)

The case of Wood v. Mitchell (supra), in 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 objections 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 concurred.

Order affirmed-, with ten dollars costs and disbursements.'