52 How. Pr. 382 | N.Y. Sup. Ct. | 1876
— The general term of this court, in reversing the judgment rendered at the special term on the first trial of this action, held that the defendant was not entitled to judgment on the pleadings, and that if the account “was not given as an account stated, the accounts are still open; and if it was under the forms of pleading adopted, and the allegations made, the plaintiff is remediless in this action.”
Since this intimation of the opinion of the general term, as to the effect of the pleadings, this cause has been tried before me, and the circumstances under which the account relied upon by the defendant was made out have been fully stated by the respective witnessess.
There is the most direct conflict in the testimony of these witnesses, but one fact is, I think, established, and that is, that the account was not made out for the purpose of inducing Townsend to act as executor and trustee under the will of Fentz.
The reply alleges that the account was made for that purpose, but it is quite apparent that Townsend had declined to act long before the account was stated and the certificate was signed. This is the sole ground on which the plaintiff attacks the account in his reply, and failing in establishing that such was the object and purpose of making the account
On the face of the account and certificate it would appear that there had been a full and final adjustment, and an account stated between the estates of Barker and Pentz. The plaintiff is not precluded from showing that the fact is otherwise, but the burden of doing so rests upon him. In Lockwood agt. Thorne (18 N. Y., p. 292) judge Seldeit says: “An account stated or settled is a mere admission that the account is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors. Its effect is to establish prima' facie the accuracy of the items without proof, and the party seeking to impeach it is bound to show affirmatively the mistake or error alleged.”
The plaintiff, therefore, could impeach this account for error or mistake (although a stated account) if he had alleged that such error or mistake existed. The difficulty is, that there is no such allegation in the plaintiff’s pleadings. The complaint does not refer to the account delivered to Hoff. The action, so far as its character is to be determined from the complaint, is for a general account. By the reply, the account is assumed to be correct to the extent to which it goes. The rule always has been that where, upon a general bill for an account, the defendant sets up a stated account in bar, the complainant will not be permitted to show mistakes or errors in such account, but must amend his bill as the settled account is prima facie a bar to the suit until specific errors therein are assigned (Weed agt. Small, 8 Paige, 575, and cases cited). Ho error is alleged in the account in the plaintiff’s reply, save that it was not a full account, and was made for the specific purpose of inducing Townsend to act as trustee.
Assuming, then, that the court would be entitled to look into the reply for the purpose of ascertaining the character
It was argued by the plaintiff’s counsel that the account relied upon by the defendant could not be regarded as an account stated for the reason that Hoff did not represent the estate of Pentz at the time that the account was prepared, and that, therefore, the account is to be deemed as given to a mere stranger.
It appears, however, that he was representing the beneficiaries under the will at that time, and that the plaintiff was dealing with him as such representative. How, then, can the plaintiff question the validity of the account on the ground of Hoff’s want of authority to bind or to act for the estate of Pentz. It is admitted that he negotiated with the plaintiff, .on behalf of the beneficiaries of the estate, and it does not appear that the plaintiff ever challenged his right to thus act; and while thus acting the account was prepared and the certificate delivered and Hoff became the trustee under the will in the place of Barker.
It seems to be not going too far to hold that, under this state of facts, the defendant’s acts related back from the time of his appointment to the time when he first assumed to act or to interest himself in the matter of adjusting the accounts
The complaint must 'be dismissed, with costs to the defendant.
Findings may be settled on two days’ notice.