92 N.Y.S. 129 | N.Y. App. Div. | 1905
The complaint contains two counts: The first is for the recovery of the sum of $2,120 for medical services rendered to the decedent between the 1st day of June, 1894, anjl the 19th day of March, 1901; the second is to recover the same amount on an account stated and evidently was intended to relate to the same services. . It is alleged that the account was stated between the plaintiff and the decedent on the 19th day of March, 1901, and that it was for medi
“ V. That all charges for service alleged to have been rendered-by plaintiff to defendant’s testatrix, Sarah Gr. Mafew, prior to December 14, 1896, are barred by the Statute of Limitations.” The plaintiff demurred, to that part of the answer pleading the Statute of Limitations as a second, separate, further and partial defense to the second cause- of action upon the ground that the ' same is insufficient in law upon the face thereof.
As "already observed, the second cause. of action is upon an account stated, and as the account is alleged to have been stated within four years of the commencement of the action it is manifest that nó Statute of Limitations has run against the same. T.he plea of the Statute of Limitations, if made with respect to the cause of' action as (shown by the account stated, is, therefore, clearly insufficient in law. It is well settled that an action upon an account stated is a new and distinct cause of action from the -original liability, based upon a promise, express or implied, tp pay a specific amount, and. the consideration therefor is the original transaction between the parties. (Schutz v. Morette, 146 N. Y. 137.). As to such cause of action it is clear, I think, that there are only two theories upon which the Statute of Limitations could' in' any event/ apply. The one is that it had run against the account stated front
It follows, therefore,, that the interlocutory judgment-should be affirmed, with costs, but with leave to the appellant-to amend upon payment of the costs of the appeal and of the demurrer.
Yait Betott, P. j., Iug-baham and McLAUGHLih, J7L, concurred; Pattebsóh, J.,- concurred in result.
Interlocutory judgment affirmed, with-costsi, with leave to appellant to .amend on-payment;of costs in-this court and in the court ■below;.- - .