#### Raffaele Pavero, Respondent, *v.*Marjorie Howard, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Account stated — When finding of, not justified — Goods sold — Reversal of judgment for plaintiff.

Where the testimony of plaintiff, his wife and his employees, given in support of an account alleged to have been stated in 1901, is unsatisfactory and it is admitted that in 1902 defendant paid a certain amount which was, as defendant stated, in full for every*348thing-she then owed, the evidence is too vague and uncertain to warrant a finding that there was an account stated.

Where in an action for goods sold, the plaintiff’s evidence of order and delivery shows that he kept little account as to whom he delivered the goods and there appears to be some foundation for defendant’s contention in regard thereto, a judgment in favor of plaintiff will be reversed and a new trial granted.

Appeal by the defendant from a judgment, rendered in favor of the plaintiff after a trial before the court and a jury in the Oity Court of the city of New York, and also from an order denying defendant’s motion for a new trial.

Denis A. Spellissy, for appellant.

Eugene L. Parodi, for respondent.

Scott, J.

The motion for a new trial should have been granted. The plaintiff sued upon two causes of action one for an account stated of $91.89, said to have been agreed to on or about February 15, 1901, and the other for goods sold between Hovember 2, 1908, and April 18, 1904, amounting to $106.70. The plaintiff’s evidence consisting of the testimony of himself, his wife and his employees was most unsatisfactory and unconvincing. As to the account stated plaintiff seeks to establish it by showing that he, or some one in his behalf, repeatedly asked defendant to pay the amount and that she said she would do so. His own testimony is that he asked her for it “three or four years ago,” but the specific time is not stated. The witness Blum testified that in February, 1901 (the account is alleged to have been stated February 15, 1901), he presented a bill to defendant and that she promised to call down and pay it, but the amount of this bill is put at $70, not $91.89. The plaintiff’s wife testified only to demands made in 1904, and she left it most uncertain whether the amount then demanded was $90 or $106. Finally it was testified to by defendant and admitted by plaintiff that in April, 1902, defendant paid $33.99, and this was, as defendant said, in full for everything she then owed. This sort of evidence is altogether too vague and *349uncertain to warrant a finding that there was an account stated between the parties. The claim made by the second cause of action was supported by doubtful evidence. Defendant owned a building used as a hotel or lodging-house with bar and kitchen. IJp to about the time the account sued for in the second cause of action began to run defendant had managed the entire establishment, but in October or November, 1908, defendant leased the kitchen, saloon and bar to one O’Connor who ran it during the whole time covered by the second cause of action. He ran a free lunch counter and used meat furnished by plaintiff. The defendant’s contention is that all, or at least the greater part of the goods sued for, was delivered to and used by O’Connor. The plaintiff’s evidence of order and delivery shows that he has kept little account as to whom he delivered the meat and there seems to be some foundation for the defendant’s contention in regard thereto. The charge to the jury was very brief and gave little instruction as to what must be made to appear in order to establish a claim of account stated. On the whole I think that the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Tetjax and Dowling, JJ., concur.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.