Davis v. Fromme

23 A.D. 498, 48 N.Y.S. 474

Opinion

Per Curiam:

The action is upon an account stated of a debt for hotel accommodations furnished the defendant by the plaintiff, the proprietor of the Oriental Hotel in the city of New York. The only witness called was the manager of the hotel. A bill was shown him for the amount of the claim, made out by the manager’s clerk, but he expressly admitted that he did not personally know whether it was ever delivered to the defendant. It was also alleged that weekly' bills were rendered, but the. witness was merely able to state that there was a rule to this. effect, and himself remarked that the clerk would have to be called on the point. Nor did the witness know that' the bills, if delivered, were retained by the defendant without objection.. He was merely able to state, “I never remember a word being spoken to me in reference to them.” . The evidence was in all respects insufficient to establish an account stated, and there was no attempt to prove the amount of the bill for which a recovery was had.

The judgment and order should be reversed and a new trial ordered, costs to appellant to abide the event.

Present —Van Brunt, P. J., Barrett, Rumsey, Williams and Patterson, JJ.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.