9 Wend. 126 | N.Y. Sup. Ct. | 1832
By the Court,
I am inclined to the opinion, upon reflection, that upon authority, the whole of the defendant’s account was taken out of the operation of the statute of limitations. The question is, whether the item for lottery tickets sold in 1826, being within six years, takes the other charges- out of the statute. I consider this a case of mutual accounts, and the only doubt is whether the last item of the defendant’s account is so connected with the others as to constitute an open running account. The cases referred to throw no light on the point; there is no allusion to any of them to the time which had elapsed between the respective charges. Perhaps the true rule is, that if there is a lapse of six years between the items, it shall cease as to such charges to be considered an open account; but where, from the commencement to the termination of the account, charges have been made at least as often as once in six years,-and the last item is within six years anterior to tho commencement of the suit, the whole account is to be allowed. Such is this case; there is no hiatus of six years in the defendant’s account, and the last item was not three years before this suit was commenced. The general doctrine upon this subject was fully considered by this court in Kimball v. Brown, 7 Wendell, 322, where all the cases referred to upon this argument and several others were reviewed by the chief justice* That case, however, only decides that the exception in the statute is confined to mutual accounts. The defendant is entitled to judgment for the amount certified by the referees as due to him in case the court should be of opinion that the items of his demands objected to ought to be allowed.