164 Misc. 831 | N.Y. Sup. Ct. | 1937
On a suit involving $121 and interest thereon, the defendant made a motion before the City Court of Buffalo for a dismissal of seventy-five dollars of the amount claimed in the action on the ground that the cause of action as to such seventy-five dollars did not accrue within the time limited by law for the commencement of an action thereon. Although it is true that such objection could be raised by motion (Civ. Prac. Act, § 30), the same question could have been raised by answer, and thus disposition of the entire issues in the action could have been made at the trial without the expense of a separate appeal on the question now under consideration. The motion was granted, and we now have before us an appeal from the order granting such motion.
The complaint sets forth two causes of action, one alleging the rental by the plaintiff to the defendant of certain premises on a month-to-month tenancy for a specified and agreed rental of twenty-five dollars a month for the months of May, June and July, 1931, and of twenty-three dollars a month for the months of August and September, 1931. The second cause of action is alleged on account stated. Suit was commenced by the service of a summons on the 30th day of July, 1937. Unless the cause of action
There can be no doubt that on the rendition of a true account stated which includes the promise to pay the amount stated and agreed upon, the Statute of Limitations begins to run anew. Such account may be stated orally or in writing. But, as this court understands the law, an account stated arises when two parties who are alleged to hold the relation of creditor and debtor had in their minds an uncertainty as to what is really owing from one to the other. This uncertainty may arise from the accumulation of various items bought and sold; it may arise from counter accounts; it may arise from a dispute as to the amount owing. If one of the situations as hereinabove just described exists, then, if the parties agree upon the balance or amount owing, and the debtor either impliedly or expressly agrees to pay that amount, there is a true account stated, and the statute runs from the date on which such agreement was made.
The rule is different in reference to accounts claimed to be accounts stated where the suit is brought upon a liquidated indebtedness such as a specific promise evidenced by a rental agreement for a fixed amount of rent, or by a promissory note. The weight of authority is that there can be no account stated upon such a liquidated original agreement. This must be due to the fact that if parties agree to pay and to receive a specified sum, the statement of account is simply a reiteration of that concerning which agreement has already been made, and there is no reason that the statute should begin anew and that the debtor should be deprived of the
The seventy-five dollars rent having been a specified and agreed amount at the time of the original contract of rental, the plaintiff did not allege a true account stated in his complaint in the City Court, and the judgment of the City Court is affirmed, with ten dollars costs to the respondent.
