Kramer v. Esselstyn

Appellate Terms of the Supreme Court of New York

Kramer v. Esselstyn

159 N.Y.S. 789

Appellate Terms of the Supreme Court of New York·Decided June 26, 1916·Published

Opinion

GUY, J.

Plaintiffs sued to recover the value of goods sold and delivered. On the trial, over the objection and exception of defendant’s counsel, plaintiff’s counsel was allowed to amend, so as to set up a cause of action on an account stated. No proof was offered as to the character and value of the goods alleged to have been sold and delivered; nor is there any proof of the balancing and rendering of an account, coupled with either an express or implied assent thereto, such as is necessary to make out an account stated. Defendant’s motion for judgment in favor of the defendant should therefore have been granted.

Judgment and order reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.

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GUY, J.

Plaintiffs sued to recover the value of goods sold and delivered. On the trial, over the objection and exception of defendant’s counsel, plaintiff’s counsel was allowed to amend, so as to set up a cause of action on an account stated. No proof was offered as to the character and value of the goods alleged to have been sold and delivered; nor is there any proof of the balancing and rendering of an account, coupled with either an express or implied assent thereto, such as is necessary to make out an account stated. Defendant’s motion for judgment in favor of the defendant should therefore have been granted.

Judgment and order reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.

Kramer v. Esselstyn, 159 N.Y.S. 789 (N.Y. Ct. App. 1916).

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