49 N.Y.S. 154 | N.Y. App. Div. | 1897
Lead Opinion
The plaintiff takes the preliminary objection that there is no sufficient order directing the exceptions to be heard in the first instance in this court. The law which authorizes that procedure (Code Civ. Proc. § 1000) prescribes that the judge presiding at a trial by jury may, in his discretion, at any time during the same term, direct an order to be entered that the exceptions so taken be heard in the first instance by the Appellate Division of the Supreme Court. Upon an examination of the record we find that the minutes of trial contain a statement that the defendants’ exceptions are to be heard in the Appellate Division in the first instance, and entry of judgment be suspended in the meantime. These minutes are signed by the clerk. They constitute part of the record of the trial of the case, and they are a sufficient certification of the éntry of the necessary order for the hearing of the exceptions in this way. If the order was not properly made, the plaintiff should have moved to strike out the direction certified by the clerk, but as he has not done so, we will not presume that the certificate was false. It will be presumed in respect of it that the proper direction was given by the court upon the trial, if indeed the statement in the minutes, signed by the clerk, does not of itself constitute such a direction.
The action was brought upon an account stated by the defendants to Clarence W. Sedgwick, the testator of the plaintiff. The allegation of the complaint upon that point is, that about the 22d day of August, 1895, at the city of Hew York, an account was stated
The claim of the plaintiff, upon which she relies to sustain this
There can be no question that the defendants are at liberty to question the correctness of the account which' they presented to Sedgwick, and to show that they made a mistake in one of the items, winch, if corrected, would change the nature of the account. An account stated is a mere admission that it is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors. Its effect is simply tó establish prima facie the accuracy of the items without other proof, and the party seeking to impeach it is bound to show affirmatively the mistake or error alleged. It is not necessary that the mistake should be a mutual one. (Lockwood v. Thorne, 11 N. Y. 170; S. C., 18 id. 285; Conville v. Shook, 144 id. 686.) Before the defendants can open this account they must show that Sedgwick was not entitled, as against them, to the possession of the bonds which he delivered to them, and which they sold for his benefit. The general rule is that the bailee can discharge his liability to the bailor only by delivering to him the thing which he has received from him, or its proceeds; but to that rule there are some exceptions which have been the subject of discussion to a very considerable extent. It is stated in the case of Bates v. Stanton (1 Duer, 79, 85) that the bailee may show that the property has been taken from him by process of law, or by a person having a paramount title, or that the title of the bailor had terminated, or that the bailor was a mere agent, and that the return of the property to him had been forbidden by his principal. Judge Stoby, however, says that the proposition, that it is open to the bailee
Babbett, Williams and Patterson, JJ., concurred; Van Brunt, P. J., dissented.
Dissenting Opinion
(dissenting):
I dissent upon the ground that the record contains no order made at the term at which the cause was tried.
Motion for new trial denied and judgment ordered for plaintiff upon the verdict, with costs.