Keystone Cooperative Grape Ass'n v. Perdue

265 A.D. 1035, 40 N.Y.S.2d 213, 1943 N.Y. App. Div. LEXIS 6725

Opinion

Memorandum: This action was not brought on the theory of an account stated. (Schutz v. Morette, 146 N. Y. 137,141; Bodkinson v. Haecker, 248 N. Y. 480,484,485.) The learnei official referee, in effect, erroneously treated the action as one for an account ■stated. The evidence indicates that no account was ever stated between the parties. It was also reversible error to refuse the defendant a reasonable adjournment to enable him to meet the claim as to settlement of accounts advanced by the plaintiff for the first time at the trial and to enable the defendant to offer evidence in support of his defenses and counterclaim. All concur. (The judgment is for plaintiff in an action on promissory notes.) Present ■— Cunningham, Taylor, Dowling, Harris and McCurn, JJ.