#### John Fennell, Respondent, *v.*Joseph R. Black, Appellant.

(Supreme Court, Appellate Term,

October, 1898.)

Mutual accounts — Statute of Limitations.

Where all the items of an account are on the plaintiff’s side and ■ grow out of two separate contracts, the first completed by him prior to January 24, 1892, and the' second in 1894, and there has been no payment and no cross-demands exist, a recovery, in an action brought February 5,. 1898 upon both contracts, is barred, as to. the first one by the. six-years’ Statute of Limitations, as a case is not presented to *729which can be applied the provisions of section 386 of the Code of Civil Procedure that “ where there is a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item, proved in the account on either side.’’

Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, seventh district, in favor of the plaintiff for $341, with costs, rendered by the court, without a jury.

The nature of the action and the material facts are stated in the opinion.

Earley & Prendergast, for appellant.

Joseph I. Green, for respondent.

Giegerich, J.

This action was commenced on the 5th day of February, 1898, by the personal service of the summons upon the defendant, and was brought to recover the sum of $135 for covering steam pipes in four certain houses situate in West Thirty-ninth street, in the city of MeW York; and the further sum of $140, for similar work in two houses in One Hundred and Tenth street, between Fifth and Madison avenues, in said city, and three houses in Eighty-ninth street and Park avenue of the same place, all of which work, it is claimed, was performed at the request of the defendant and upon his credit..

The defense was a general denial and the Statute of Limitations was invoked as to the first item. As to the latter, the plaintiff • testified that the work was performed *about*.1893; but the bill therefor presented by him to the defendant bears date the 24th day of January, 1892, and reads: *“*To covering pipe as per contract, $135.00.” The defendant, on the other hand, gave testimony to the effect that the services were rendered in the fall of 1891. It is, therefore, to my mind, fair to assume from all these circumstances that the work was finished prior to the date of said bill, and not in January, 1893, as set forth in plaintiff’s bill of particulars. It is urged, however, that the defense, that the said item was barred by the Statute of Limitations, has been obviated, because as claimed, there was a mutual, open and current account between the parties litigant, as contemplated by section 386 of the Code of Civil Procedure.

*730In order to constitute a current account, within the. meaning of said section, there must be items upon both sides, debit and credit. Where all the items are on one side, the last item, though'within six years, does not draw after it those of longer standing. Coster v. Murray, 5 Johns. Ch. 522; Edmondstone v. Thomson, 15 Wend. 554; Green v. Disbrow, 79 N. Y. 1; Compton v. Bowns, 5 Misc. Rep. 213. As was said by Earl, J., in Green v. Disbrow, *supra,*p. 8: “ there must be an account of mutual dealings,— not an account of items only upon one side, or an account of items upon one side upon which there had been simply payments not within six years upon the other side.”

In the case at bar the evidence clearly shows that the work embraced in each of the'above-mentioned items was done under a separate and distinct contract; the first, as we have seen, having been performed prior to January 24, 1892, and the other in the year 1894.' Mo payment was made on account of either job; no set-ofi or cross-demand exists in favor of the defendant against the plaintiff, and there being no circumstances from which any implication could be raised of an understanding between the. parties that there should be a running account, it must be held, that there were no reciprocal demands between the parties within the purview of the above-cited section of the Oodé, and, hence, the limitation of six years, provided by section 3.82 of said last-mentioned enactment, applies to the first item.

The evidence touching the other claim was, in my opinion, sufficient to justify the finding of the justice, as is assumed from the judgment, that the work was done upon the sole credit of the defendant .and upon his promise to pay for the same. ' While there was sufficient evidence in the case to support a finding either way, it was nevertheless the function of the trial jpstice to determine on which side the weight of the' evidence inclined, or that it did not preponderate in favor of the plaintiff, and having found for the latter, we should not disturb his conclusion in respect to the said second item. He had the advantage of. observing the-witnesses and the manner in which they gave their testimony, and hence, was in a better position than we are of judging as to their credibility. It' cannot, therefore, be said that the case is one which would justify a reversal of the judgment- as to 'said .last-mentioned item upon the facts. Lynes v. Hickey, 4 Misc. Rep. 522; Berman v. Goldsand, 22 id. 735.

*731It follows from these views that the judgment should he modified by reducing it to $183.30 damages and costs, and, as modified, affirmed, without costs.

Beekman, J., concurs.

Judgment modified, and, as modified, affirmed, without costs.