Callahan v. O'Rourke

17 A.D. 277, 45 N.Y.S. 764

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1897
• Status: Published

Opinion

JPbb Curiam :

The rendition of the plaintiff’s bill to the defendant, her payment thereon of five dollars and. proposal to- settle the same for. twenty dollars, are relied upon to establish an account- stated between the parties.

We do not think the facts proved are, under the circumstances of this case, sufficient to establish an account stated between the parties.

The plaintiff’s own evidence shows that all the services rendered by him were for the defendant’s, husband personally; there is no pretense' that the defendant ever employed him, or in any way sug-gested or requested that he attend her husband. There were never any dealings between the plaintiff and defendant prior to her husband’s death-; there was no legal or equitable claim upon the defendant by the plaintiff, and hence there was nothing upon which an account could be stated. (Field v. Knapp, 108 N. Y. 87.)

The judgment should, therefore, be reversed. •

All concurred.

Judgment of the County Court and Of the justice reversed, with ' costs and disbursements of this appeal and.costs and disbursements in the courts below.