Hoff v. Pentz

1 Abb. N. Cas. 288 | N.Y. Sup. Ct. | 1876

Lawrence, J.

One of the defenses in this case set up'in the defendant’s answer is an account stated. A copy of the alleged account stated, purporting to be dated January 1, 1870, has been served upon the plaintiff ’ s attorney, who now moves for a further and better account of an item in said account contained. If it be true that the account served is an account stated between Barker and the defendant, the defendant cannot, so far as I am able to see, serve a further account with Barker; it cannot be altered. The effect of the account is something to be determined on the trial. If the account is false and fraudulent, that fact can be shown on the trial, and its force avoided. I do not consider the plaintiff as entitled to relief under section 158 of the Code. But this is a case in which it is clear that an examination of the defendant before trial may contribute materially to aid the plaintiff; and, as further relief is asked for, I am inclined to entertain an application for such examination.