#### Stevens *v.*Ayers.

*(Supreme Court, General Term, Fifth Department.*

June 20, 1890.)

-Account Stated—What Constitutes.

An account presented by plaintiff against the estate of a decedent showed that the principal item in it originated in a transaction between plaintiff and one P. There was evidence that, when the account was presented to decedent, he expressed surprise at the amount of it, said that P. ought to have paid it, ana suggested a counter-claim. Afterwards he said that he would pay the account, and have no trouble about it. *Meld*insufficient to show an account stated between plaintiff and -decedent.

.Appeal from special term, Monroe county.

Action by Emmett Stevens against Marshall J. Ayers, administrator, etc. From an order denying defendant’s motion to confirm the report of a referee, and granting plaintiff’s motion for a new trial, defendant appeals.

Argued before Dwight, P. J., and Macomber and Corlett, JJ.

*Mli Soule,*for appellant. *De M. Page,*for respondent. -

Dwight, P. J.

The claim referred was against the estate of Thomas Hallett, deceased, as upon an account stated in his life-time. The evidence in support of it was the testimony of an attorney, who presented a statement of the account to Mr. Hallett a month before his death, and who gave the following version of what took place: “I think he took it, and looked at it, and said the account was larger than he thought it was, and said that Perry ought to have paid it. I said that I did not know anything about that, but that it was left with me to sue if not paid at once. He said Emmett better not sue it, as he was carrying a watch that belonged to him. I said that had nothing to do with it, as my instructions were to sue it. He then says: * I will see Emmett, and pay it. I will have no trouble about it.’ ” This narrative, substantially repeated on cross-examination, is all the evidence in the case in support of the plaintiff’s claim. We think it falls short of establishing an account stated between the plaintiff and the deceased. It is essential to an .account-stated that the party to be charged should, either expressly or by implication, admit the correctness of the account as a claim against him. In this case the deceased began by expressing surprise at the amount of the bill; then declared that it belonged to another person to pay it; then suggested a possible defense or counter-claim, and ended by a naked promise to pay to •avoid trouble. All this, it is true, he might have done if the indebtedness had been his own and the amount undoubtedly correct; but what he said was no admission of either of those facts, while his promise to pay rather than have trouble indicated an unwillingness to concede that the account represented a just debt, which he was bound to pay. Moreover, the account as presented to the administrator shows on its face that the principal item originated in transactions between the plaintiff and Perry Hallett, the person mentioned by the deceased as the one who ought to have paid the account. The item referred to is as follows: “Sept. 1, 1882. To amount due on dissolution of partnership between Perry J. Hallett and Emmett Stevens, $112.00. ” The item is entirely unexplained by the evidence. There is nothing to suggest a reason why Thomas Hallett should have been asked to pay it. In order to charge his estate with its payment after his death, on the principle of an account stated, the evidence of his admission of its correctness, as a •charge against him, should be clear and unequivocal. Of course, there could be no recovery upon the promise of the deceased, as such. An account stated •consists, not in a promise to pay, but in an admission that the account is just nnd. true. The promise is of no effect except by way of admission that the debt is that of the promisor. If it is that of another, such a promise .¡is without consideration, and void by the statute of frauds. The evidence being undisputed, it was a question of law whether the facts constituted an *503account stated. *Lockwood*v. *Thorne,*18 N. Y. 285, 288. We think the referee was justified in this case in holding that an account stated was not established, and that his report dismissing the claim should have been confirmed. The order of the special term should be reversed, and the report of the referee confirmed. Order of the special term reversed, and the report of the referee confirmed, with costs of this appeal and of the special term. All concur.