Darrow v. Clipper Manufacturing Co.

48 Misc. 635, 96 N.Y.S. 194

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 1, 1905
• Status: Published

Opinion

MacLean, J.

Heretofore, in an action in the City Court between these parties, the plaintiff sued for goods sold and delivered by his assignor, consisting of clips and trays, itemized in the bill of particulars, and upon orders running from June 5, 1901, to August nineteenth, following. In that action, as appears from the judgment-roll, the plaintiff having withdrawn all his claim except for trays, judgment was entered upon the verdict of a jury in his favor. Subsequently, and herein, in the Municipal Court, the plaintiff, as assignor, declared in three causes for these clips, viz., for work, labor and services at an agreed sum, upon a quantum meruit and for goods sold and delivered, and elected to stand upon the second cause. His complaint was dismissed, and properly, for the evidence discloses a running account between the defendant and the plaintiff’s assignor, with the rendition of monthly statements of the gross amounts due, and upon orders which were sometimes for trays, sometimes for clips, and sometimes for both, within the dates above mentioned. When suit was brought in the City Court, the claim of the plaintiff was single or entire, for “ in the case of a running account, it may be fairly implied that it is in pursuance of an agreement that an account may be opened and continued, either for a definite period or at-the pleasure of one or both of the parties ” (Secor v. Sturgis, 16 N. Y. 548, 558) ; and, therefore, judgment there obtained bars the present claim.

Scott and GildePuSlbeve, JJ., concur.

Judgment affirmed, with costs.