#### Robert S. Hall, Resp’t, *v.*John M. Stone, App’lt.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

Limitation—Mutual accounts.

A mutual account existed between the parties to this action in the years 1876 to 1879. In February, 1879, the plaintiff stated upon his books a balance against defendant, which balance plaintiff in the same month assigned to a third person, who afterwards re-assigned it to plaintiff. In 1884 defendants made one purchase of plaintiff. In 1889 plaintiff brought this action. *Feld,*that by the assignment in February, 1889, the mutual accounts between the parties were closed and the statute of limitations began to run;- that the account then became the property of the assignee and was taken out of the mutual accounts of the parties; that its reassignment to plantiff, not followed by any recognition of its validity by defendant, did not assist the plaintiff and that the subsequent purchase in 1884 could not in any form revive or continue the former mutual accounts.

Appeal from judgment of the Warren county court, affirming judgment of a justice’s court rendered on a verdict in favor of plaintiff for $17.55.

*Coyle & Cunningham,*for app’lt; *S. H. Bevins,*for resp’t.

Learned, P. J.

This action was commenced in justice’s court January, 1889, to recover twenty-five dollars for goods sold in a *230country store. The defendant pleaded payment, statute of limitations and counterclaim for services of about the same amount. Plaintiff’s demand consisted of about forty items; defendant’s of six.

The case was tried before a jury who rendered a verdict for plaintiff of $17.55.* The defendant appealed to the county court and that court affirmed the judgment. The defendant now appeals to this court.

The plaintiff’s items begin June 29, 1876, and end December 24, *1878,*except as mentioned hereafter. In February, 1879, the plaintiff made a balance of the account against defendant by crediting to defendant certain cash and charges therein, which balance was $17.59 ; and in that month he made an assignment and turned over the balance to the assignee. He did no business till June 1, 1879. And at some time, exactly when does not appear, the account as he testifies was assigned back to‘ him. Since that time the only charge for goods sold on his books is in March 8, 1884, for a ham, $2.84. There is what is called a charge for eight years’ box rent, four dollars, which amount was specifically paid. This is not an article sold by defendant, but appears to be for use of post-office box. The plaintiff claims by the charge for the. ham to save the effect of the statute of limitations.

By the assignment from the plaintiff in February, 1879, the mutual accounts between plaintiff and defendant (if such accounts ever existed) were closed. The balance, whatever it was, became the property of the assignee. In the view most favorable to plaintiff the statute of limitations began to run from December 24, 1878, the date of the last item in his account, and the right of action was barred in December, 1884.

It was held in *Green*v. *Ames,*14 N. Y., 225, that where there is a mutual, open and current account between parties, and one of them purchases from a third person and holds an open account against the other without notice to or recognition of its validity by the latter, it does not become a part of the mutual account between them within the statute of limitations. That the demand so purchased is barred in six years from the time it accrued to the assignor, though there existed a mutual account between the assignee and the other party.

Now to apply that case to the present, let us assume (which is not shown) that from June, 1879, down to March 8, 1884, there was a mutual account between these parties. In fact the only account is the ham sold by plaintiff that last mentioned day, and the defendant’s charges for horse hire. The plaintiff buys from some person whose name is not given, called plaintiff’s assignee, this balance of account of $17.50 against the defendant Such balance, we have already seen, would be barred at least six years from February, 1879, if not from December 24, 1878. Now the plaintiff cannot by this purchase make that demand a part of his mutual accounts between himself and defendant, as is said in the case last cited This must be true, although the account so purchased by the plaintiff had once belonged to him. For by his assignment to his assignee it had ceased to be a part of the run*231ning and mutual accounts between him and defendant. It became the property of another person. The defendant did not continue to deal with the plaintiff with reference to a running account which no longer belonged to plaintiff.

If, therefore, another running account arose between the parties the plaintiff could not by purchasing this old'demand make it a part of such running account. Of course still less could he by such purchase save the running of the statute, if there really existed subsequently no mutual account.

We may suppose that when the plaintiff assigned the balance alleged to be owing from defendant, defendant knew of this, or was notified of it. He knew, then, that there could no longer be dealings between him and plaintiff on the basis of, and with reference to, mutual accounts.

The learned county judge distinguished this case from the one cited on the ground that the assignment spoken of by plaintiff did not divest this title, but that the demand assigned was only security for his creditors. We do not see that the case shows what was the nature of the assignment of this account. But if it was an assignment for the benefit of creditors, still it transferred the title to the assignee and closed the mutual accounts between plaintiff and defendant. And there is no evidence that after the demand was reassigned to plaintiff there was any recognition of it by the defendant or any agreement between him and the plaintiff that it should be an item in the alleged running account.

The plaintiff urges that even if the claim assigned by the plaintiff is barred, still there must be an affirmance for the sum of $2.84, the price of the ham. But the recovery was for $17.55, while the amount of the balance assigned was $17.59. Evidently, therefore, there was no recovery for the ham.

There, are several other questions raised in this case which we deem it unnecessary to discuss.

Judgments of county court and justice of peace reversed, with costs.

Landon and Mayham, JJ., concur.