Hogeboom, J.
The defendant’s counsel made four several requests to charge the jury, which it may seem better, to illustrate the case, first to consider.
The request to the court to charge absolutely that the entries by Watson and Tappan in the books of the bank were more reliable than the testimony of the plaintiff, after the lapse of six years, was properly refused, and it was properly left for the jury to say, upon all the evidence, which was entitled to the greater weight. This is so obviously the correct rule that it scarcely needs illustration. A contrary instruction, if positive and absolute, would probably have entitled the plaintiff, if defeated, to a new trial.
The second and third requests are faulty, I think, for containing the clause “ which is not this action.” If by that it was meant that it was not competent for the plaintiff to raise the question of fraud or mistake, because it had not been made as a distinct issue in the pleadings, the position was not well taken. The plaintiff could doubtless have framed a complaint alleging in terms that there had been an account [321]*321stated between the parties, and setting forth circumstances of fraud or mistake therein as a ground for opening the same and reinvestigating the items thereof. And a denial of the allegations would have raised an issue upon which the parties might have gone to trial and introduced, probably, nearly the same evidence which they brought forward on this occasion. Or, the plaintiff might properly, I think, as he has done in this case, have framed his complaint to recover a specific sum—a single item—claimed to have been owing from the defendant to him ; leaving the defendant to set up a denial, or a payment, or an account stated, as the fact might be. A statement of the latter fact would be presumptively a bar, and would throw upon the plaintiff the necessity—if he wished simply to deny that there was an account stated—of raising that question, by an omission to reply, or by a reply containing a general denial of the answer ; or if he wished to open the account to re-examine the items on the ground of fraud or mistake, to amend his complaint or reply specially by permission of the court, setting up circumstances of fraud or mistake, in the nature of a surcharge or falsification, according to the practice of a court of equity. In this particular case, the claim being for an omitted credit, it would have been in the nature of a surcharge. But the defendant did not adopt this course, and interposed simply the defenses of a general denial and payment. Under issues thus framed, the parties have mutually and without objection gone into the whole evidence in the case. It is not, I think, for the defendant to complain that this has been done. Perhaps the plaintiff might have objected that if the defendant wished to rely upon an account stated, he should have interposed it as a specific defense. But the question does not arise. Both parties have investigated the whole case, on the trial, with the utmost freedom, and without a particle of objection, and they cannot now be allowed to say this is not a case, upon the pleadings, for examining the question of fraud or"mistake. [322]*322If he intended by this language, “ which is not this case” to say it was not a case of fraud or mistake upon the evidence, that is that the evidence did 'not exhibit any circumstances tending to show mistake, I think the objection was not well founded in fact, so far as to prevent their submission to the jury, and therefore a compliance with it was properly refused.
I have more doubt about the first request, and whether the judge, at the circuit, ought not to have granted it. It consisted of two propositions : 1st. That if the plaintiff’s bank book was written up from time to time, so as to show the state of the account between the two parties, and delivered to him (the plaintiff) with vouchers, it amounted to a stated account by which he was bound, unless he objected to it within a reasonable time ; and, 2d. That the plaintiff having made no claim upon the defendant until the spring of 1862, he did not object within a reasonable time, and could not therefore, for that reason, recover in this action.
The plaintiff’s counsel, pronounces the first branch of this request“ entirely unobjectionable,” but attacks the latter as unsound. I regard the plaintiff as without any reasonable excuse for allowing the matter to be so long unquestioned. His bank book was written up as early as August or September, 1856, and balances struck, and the vouchers delivered up, repeatedly afterwards, until 1859, when he drew out of the bank the balance remaining to his credit. In September, 1856, he knew, or with reasonable attention might have known, and was bound to know, that the draft in question was not credited to him on the books of the bank. It is no sufficient apology for his remissness to say he was not learned, or was otherwise employed. He was bound, by all the rules which regulate commercial transactions, to give attention to this business, and if necessary, to obtain the services of a competent assistant for the purpose. If he was not persuaded of a fact of which on this trial he was so positive—that the paper had come into the possession of the defendant—that is another, question. That casts a doubt over his accuracy in [323]*323the whole transaction. But even that is hut a lame apology for letting the matter lie till the spring of 1862, before he brought it to the notice of the bank. Upon all the principles applicable to transactions of this kind, this was, in my opinion, clearly a stated account, not objected to within a reasonable time ; so plainly so, that it was not, under the evidence, a question proper for the consideration of the jury whether the delay was sufficiently accounted for.
Differing on this point from the judge who presided at the trial, let us see whether the defendant has taken any available exceptions on this branch of the case. It has excepted to the charge of the judge that the delay in objecting to an account thus made out and stated, was to be considered by the jury in weighing the testimony. In this there was no error. It was to be considered, and very seriously considered ; so much so as to throw great discredit upon the plaintiff’s case. The charge, in this clause of it, was not equivalent to a submission of the question to the jury to determine whether the delay was so unreasonable as to forbid a recovery by the plaintiff. That, I think, would have been error, but not to say to thénij in effect, that the delay in objecting to the account detracted from the strength of the plaintiff’s case. In the refusal to comply with the second request, the judge laid down the rule more broadly, and, as it seems to me, erroneously, in saying “ it was for the jury to determine upon the evidence whether the plaintiff unreasonably delayed to assert any error in the account with the defendant.” But I find no specific exception limited to this clause of the charge, The case states, immediately after the last sentence, “and the defendant’s counsel then and there duly excepted.” But the previous sentence, to which that exception is applicable, contains not only the clause above quoted, but a refusal to charge, and a charge in both of which the judge was, in my opinion, correct. The exception must therefore fail, for being too comprehensive.
The first branch, and the latter part of the second branch,
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Hogeboom, J.
The defendant’s counsel made four several requests to charge the jury, which it may seem better, to illustrate the case, first to consider.
The request to the court to charge absolutely that the entries by Watson and Tappan in the books of the bank were more reliable than the testimony of the plaintiff, after the lapse of six years, was properly refused, and it was properly left for the jury to say, upon all the evidence, which was entitled to the greater weight. This is so obviously the correct rule that it scarcely needs illustration. A contrary instruction, if positive and absolute, would probably have entitled the plaintiff, if defeated, to a new trial.
The second and third requests are faulty, I think, for containing the clause “ which is not this action.” If by that it was meant that it was not competent for the plaintiff to raise the question of fraud or mistake, because it had not been made as a distinct issue in the pleadings, the position was not well taken. The plaintiff could doubtless have framed a complaint alleging in terms that there had been an account [321]*321stated between the parties, and setting forth circumstances of fraud or mistake therein as a ground for opening the same and reinvestigating the items thereof. And a denial of the allegations would have raised an issue upon which the parties might have gone to trial and introduced, probably, nearly the same evidence which they brought forward on this occasion. Or, the plaintiff might properly, I think, as he has done in this case, have framed his complaint to recover a specific sum—a single item—claimed to have been owing from the defendant to him ; leaving the defendant to set up a denial, or a payment, or an account stated, as the fact might be. A statement of the latter fact would be presumptively a bar, and would throw upon the plaintiff the necessity—if he wished simply to deny that there was an account stated—of raising that question, by an omission to reply, or by a reply containing a general denial of the answer ; or if he wished to open the account to re-examine the items on the ground of fraud or mistake, to amend his complaint or reply specially by permission of the court, setting up circumstances of fraud or mistake, in the nature of a surcharge or falsification, according to the practice of a court of equity. In this particular case, the claim being for an omitted credit, it would have been in the nature of a surcharge. But the defendant did not adopt this course, and interposed simply the defenses of a general denial and payment. Under issues thus framed, the parties have mutually and without objection gone into the whole evidence in the case. It is not, I think, for the defendant to complain that this has been done. Perhaps the plaintiff might have objected that if the defendant wished to rely upon an account stated, he should have interposed it as a specific defense. But the question does not arise. Both parties have investigated the whole case, on the trial, with the utmost freedom, and without a particle of objection, and they cannot now be allowed to say this is not a case, upon the pleadings, for examining the question of fraud or"mistake. [322]*322If he intended by this language, “ which is not this case” to say it was not a case of fraud or mistake upon the evidence, that is that the evidence did 'not exhibit any circumstances tending to show mistake, I think the objection was not well founded in fact, so far as to prevent their submission to the jury, and therefore a compliance with it was properly refused.
I have more doubt about the first request, and whether the judge, at the circuit, ought not to have granted it. It consisted of two propositions : 1st. That if the plaintiff’s bank book was written up from time to time, so as to show the state of the account between the two parties, and delivered to him (the plaintiff) with vouchers, it amounted to a stated account by which he was bound, unless he objected to it within a reasonable time ; and, 2d. That the plaintiff having made no claim upon the defendant until the spring of 1862, he did not object within a reasonable time, and could not therefore, for that reason, recover in this action.
The plaintiff’s counsel, pronounces the first branch of this request“ entirely unobjectionable,” but attacks the latter as unsound. I regard the plaintiff as without any reasonable excuse for allowing the matter to be so long unquestioned. His bank book was written up as early as August or September, 1856, and balances struck, and the vouchers delivered up, repeatedly afterwards, until 1859, when he drew out of the bank the balance remaining to his credit. In September, 1856, he knew, or with reasonable attention might have known, and was bound to know, that the draft in question was not credited to him on the books of the bank. It is no sufficient apology for his remissness to say he was not learned, or was otherwise employed. He was bound, by all the rules which regulate commercial transactions, to give attention to this business, and if necessary, to obtain the services of a competent assistant for the purpose. If he was not persuaded of a fact of which on this trial he was so positive—that the paper had come into the possession of the defendant—that is another, question. That casts a doubt over his accuracy in [323]*323the whole transaction. But even that is hut a lame apology for letting the matter lie till the spring of 1862, before he brought it to the notice of the bank. Upon all the principles applicable to transactions of this kind, this was, in my opinion, clearly a stated account, not objected to within a reasonable time ; so plainly so, that it was not, under the evidence, a question proper for the consideration of the jury whether the delay was sufficiently accounted for.
Differing on this point from the judge who presided at the trial, let us see whether the defendant has taken any available exceptions on this branch of the case. It has excepted to the charge of the judge that the delay in objecting to an account thus made out and stated, was to be considered by the jury in weighing the testimony. In this there was no error. It was to be considered, and very seriously considered ; so much so as to throw great discredit upon the plaintiff’s case. The charge, in this clause of it, was not equivalent to a submission of the question to the jury to determine whether the delay was so unreasonable as to forbid a recovery by the plaintiff. That, I think, would have been error, but not to say to thénij in effect, that the delay in objecting to the account detracted from the strength of the plaintiff’s case. In the refusal to comply with the second request, the judge laid down the rule more broadly, and, as it seems to me, erroneously, in saying “ it was for the jury to determine upon the evidence whether the plaintiff unreasonably delayed to assert any error in the account with the defendant.” But I find no specific exception limited to this clause of the charge, The case states, immediately after the last sentence, “and the defendant’s counsel then and there duly excepted.” But the previous sentence, to which that exception is applicable, contains not only the clause above quoted, but a refusal to charge, and a charge in both of which the judge was, in my opinion, correct. The exception must therefore fail, for being too comprehensive.
The first branch, and the latter part of the second branch, [324]*324of the request, asked the judge to charge that under such circumstances, the plaintiff was bound by the stated account, (that is as I understand it) absolutely and conclusively bound, and could not recover. I think this was a more rigid penalty than the law imposed. The true rule is more nearly stated in the second and third requests, that the stated account becomes conclusive upon the parties unless impeached for fraud or mistake. In the language of the opinion in Lockwood v. Thorne, (11 N. Y. Rep. 175,) “ the transaction then being an account stated, is conclusive upon the parties, unless the plaintiff affirmatively shows fraud or mistake.” So in Judge Selden’s opinion in the same case, in 18 N. Y. Rep. 292 : “An account stated or settled is a mere admission that the account is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors.” “ But the parties are never precluded from giving evidence to im-' peach the account, unless the case is brought within the principles of an estoppel in pais, or of an obligatory agreement between the parties ; as, for instance, when upon a settlement mutual compromises are made.” (See further, Murray v. Toland, 3 John. Ch. 569 ; Wilde v. Jenkins, A Paige, 481; Philips v. Belden, 2 Edw. 1.)
The result is that a stated account never gives to a party claiming under it the benefit of an absolute estoppel, and in practical effect gives him little more than these two advantages : 1st. When the question arises upon the' pleadings, the court has, in some instances, in granting permission to amend or reply, some equitable control over the power of opening the accounts. 2d. When the question arises upon the trial the party impeaching the account has the affirmative of the issue, and the burthen, and sometimes an oppressive burthen, of proof. These are considerable advantages, but they come very far short of placing the adverse party under the bar of an absolute estoppel. On the whole, therefore, I think this request, for the reason just stated, was also properly refused.-
[325]*325Nor do I think, whatever may be our opinion of the merits of the case, that we can consistently with the rules of law, grant a new trial upon the ground that the verdict is against the weight of evidence. 1st. The plaintiff—and to some extent he is corroborated by Lynd—swears explicitly that he delivered this di'aft to the defendant, and that he has never had from it either payment or credit. None of the officers of the bank swear explicitly that this is not so, and all were not examined upon this subject who might have been. The lapse of time, and the stated account, are strong circumstances against the plaintiff ■ but we can scarcely say, under the positive- testimony of the plaintiff, that the bank has had the draft and has not accounted for it, and a failure to contradict it by testimony equally explicit, that the weight of proof is so clearly with the defendant as to require us to set aside the verdict.
2d. This draft is clearly enough traced into the possession of the defendant. The plaintiff swears to it, and the defendant does not deny it. It is highly probable, not to say absolutely certain, that it passed between the defendant’s bank and the Bank of the Capitol, at Albany. The respective theories in regard to it are, 1st, that of the plaintiff, that it was received by the defendant for' collection and never accounted for; and 2d, that of the defendant, that it was received as cash, and accounted for at the time. There certainly are some circumstances tending to show that the plaintiff is mistaken in supposing that it did not go into the hands of the bank till the 23d or 24th of July ; for an item of precisely that amount passed on the 15 th from Troy to Albany, in the exchanges between the Market Bank and the Bank of the Capitol, and it was entered in the exchange account and not on the tickler, indicating it to be a cash item. And to make «that more absolutely certain, it would have been more satisfactory if the defendant had given evidence to show that the item did not, after the 24th, again appear on its exchanges with the Bank of the Capitol. Indeed I think it somewhat [326]*326remarkable that the case does not explicitly state, and that proof was not given, that no further or other account of this item appears on the books of the bank; or that the state of the account of Lynd, as well as of Hutchinson, and perhaps that of some other parties, was not examined at about that period of time—from the 15 th to the 25 th of July—for the purpose of ascertaining whether by possibility some mistake had not occurred, in regard to the disposition of this item, which would tend to promote justice, between these parties.
The theory of the defendant is that this draft may have been, though not sworn to that it actually was, treated as a cash item, and paid over the counter of the bank to the plaintiff, in cash, and not in any way entered or necessary to be entered on the books of the bank. And it would nob have been improper, or unnatural, so to have entered it. It was very likely to be so entered, as the plaintiff was an habitual dealer and customer at the bank, making frequent if not daily deposits and drawing frequent if not daily checks. I think there is no evidence to show that in any other instance the defendant paid any of the canal drafts to the plaintiff in that way. And the draft of $853.49 which, as the defendant says, was treated by the bank as a cash item, was nevertheless credited to the plaintiff on the books of the bank.
3d. There are undoubtedly some difficulties in sustaining the theory of the plaintiff, and some improbabilities in some of the circumstances testified to, and great lapse of time allowed to occur before an investigation is' demanded; but there are also counter difficulties and counter improbabilities in the theory of the defendant—- an absence of positive testimony—and a lack of that full examination and presentation of facts which, I think, the circumstances of the case called for.
The case has been once tried without reaching a verdict, and again tried with a result unfavorable to the defendant. I am not prepared to say that we ought to interfere to set that verdict aside. The case, in any aspect of it, is attended [327]*327with doubts and uncertainties, and the plaintiff has this advantage in the clearly established facts of the case, that the draft belonging to him went into the defendant’s possession.
[Albany General Term,
March 4, 1867.
I think the verdict cannot be disturbed, and that the judgment must be affirmed.
Miller, J.
I think that no error of law was committed upon the trial of this case. And although not entirely satisfied with the verdict of the jury, I do not well see how, according to well settled rules of law, it can be disturbed. I therefore concur in the result of the foregoing opinion. •
Peckham, J. dissented.
Judgment affirmed.
Peckham, Miller and Hogedoom, Justices.]