118 N.Y.S. 916 | N.Y. App. Div. | 1909
This is an action upon an account stated. There, is no dispute as to the material facts. The firm of E. B. Havens & Co. were stock brokers. On April 16, 1906, the defendant asked one of the firm
“ Mr. B. McClain in account with Herbert L. Horton, Assignee for E. B. Havens & Co.:
“ Dr. Ob.
“ 1907. Amount.
“ May 22. To balance.... 1982.30 50 Cent Lea 23.... 1142.75
50 Cent Lea Long To balance ...... 839.55
1982.30 1982.30
“May 22. To Balance... $839.55.”
This statement indicated that the Leather stock had been sold at twenty-three, and that the sum of $839.55 was owing by the defendant. On September 20, 1907, the said assignee sent a letter to the defendant, stating that about a month before he had mailed to the defendant a statement of his account with E. B. Havens & Co., showing his indebtedness to them and threatening suit unless the account was paid. On the same day the defendant replied, disputing his liability. In July, 1908, the said firm of E. B. Havens & Co. were adjudged bankrupts and the plaintiff in this action was elected trustee, and thereupon the said Horton as assignee transferred to him all the property and rights of. action of said bankrupts, including the claim against the defendant. At the close of the entire case a verdict was directed for the defendant. In this respect we think that the learned trial court erred. The statement sent to the 'defendant by Horton in July, 1907, was an “account
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
Jenks, Gaynor, Rich and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.