#### Edward P. Hatch, Appellant, *v.*Gustave von Taube, Respondent.

(City Court of New York, General Term,

March, 1900.)

Account stated — Insufficient proof of same.

In order to constitute an account stated there must be a mutual examination of the claims of the respective parties, a balance must be struck, it must be expressly or impliedly agreed to be correct, and there must be an agreement that the party, against whom it is found, will pay it.

Proof that the plaintiff’s collector called on the defendant with a statement of the plaintiff showing a balance due him, that the collector demanded payment, and that, after threats to sue, the defendant made a small payment upon the claim, is insufficient to establish a cause of action as upon an account stated.

Appeal from a judgment in favor of the defendant, dismissing the complaint, and from an order denying a motion for a new trial. The plaintiff was a former copartner, in the firm of Lord *&*Taylor, and was lawfully dealing under the name of that firm, the use of the name being continued in him.

Henry Tompkins, for appellant.

Elias Rosenthal, for respondent.

*31O’Dwyer, J.

The complaint alleged that, on or about the 6th day of April, 1895, an account was stated between plaintiff and defendant. That upon such statement a balance of $182.12 was found due to the plaintiff from defendant. That the defendant then and there promised to pay said sum to the plaintiff, and then and there, to wit, on or about said 6th day of April, 1895, paid to the plaintiff on said account the sum of $5. The better form of pleading is to state that the parties had an accounting, and then the result, instead of the legal deduction; but, under the liberal rule affecting the construction of pleadings, we hold that plaintiff’s complaint contained a sufficient statement of a cause of action upon an account stated. In support of the allegations of the complaint, witness Otto testified that he called upon the defendant in April, 1895, and told him that he represented Lord *&*Taylor, and that he called upon him to collect the account that was overdue; that the defendant offered him in payment a lot of books, which the witness told him he would decline and would not accept anything like that; that he had a statement with him that called for the account due and the old balance that was due in the following form: *“*Balance due on amount of account rendered $132.12; ” that he handed that statement to the defendant and told him if he would not make any payment Lord *&*Taylor would bring suit, and defendant then paid $5 on the account. He further testified: *“I*only accepted the $5 and I told him I would call every month; ” and on cross-examination he testified: “I remember defendant told me he was going to pay-the whole bill.” The other evidence introduced by the plaintiff in no way adds to the value of Mr. Otto’s testimony. The complaint was then dismissed upon the ground that the plaintiff had failed to make out a cause of action.

To maintain the action as averred in the complaint, the plaintiff must prove an account stated; that and nothing else will support his allegations. An account stated is an account balanced and rendered, with an assent to the balance expressed or implied; so that the demand is essentially the same as if a promissory note had been given for the balance. Volkening v. DeGraaf, 81 N. Y. 268. To constitute an account stated, two things must occur: (1) There must be a mutual examination of the claims of the respective parties and a balance struck, and (2) there must be an agreement, either expressed or implied, that that balance is cor*32rect and that the party against whom it is found will pay it. The minds of the parties must meet upon the allowance and disallowance of the claims, and they must mutually agree upon a final adjustment, of them. Lockwood v. Thorne, 18 N. Y. 285. The paper handed defendant was not a copy of the plaintiff’s account, but a mere statement of an alleged balance due upon an account already rendered. ISTo items were furnished, no opportunity to examine the items that constituted the account given, and there is no evidence that at any time prior to April, 1895, was the defendant furnished with an account showing the items. All that the plaintiff established was that at or about April 16, 1895, his collector called upon the defendant with a statement showing a balance due and demanded payment thereof, and that after threatening suit he received a small sum on account. Applying the rules laid down in the cases cited herein, the evidence introduced by the plaintiff in support of his contention is insufficient to establish that an account had been stated and a balance agreed upon which was alike binding on the plaintiff and the defendant. A dismissal of the complaint was proper, and the judgment and order appealed from should he affirmed, with costs.

Fitzsimons, Oh. J., and Gonlan, J., concur.

Judgment and order affirmed, with costs.