Lundberg v. Ronde

Appellate Division of the Supreme Court of New York

Lundberg v. Ronde

146 A.D. 1, 130 N.Y.S. 385, 1911 N.Y. App. Div. LEXIS 1814

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 7, 1911

StatusPublished

This text of 146 A.D. 1 (Lundberg v. Ronde) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lundberg v. Ronde, 146 A.D. 1, 130 N.Y.S. 385, 1911 N.Y. App. Div. LEXIS 1814 (N.Y. Ct. App. 1911).

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Opinion

McLaughlin, J.:

. The action is upon an account stated. The answer denies that an account was stated between the parties,, and, alleges, as. a separate and distinct defense, that all the accounts rendered by the Frank Si De Bonde .Company to the defendant had upon them letters which indicated that errors and omissions were excepted; that all statements and 'accounts rendered were made from the books of' the corporation, which were inaccurately kept and were not true books of account, and that the'account with the defendant was not a correct account and contained errors and omissions. This is the second appeal. Before the answer was served the defendant moved for a bill of particulars of the account alleged to have been stated. The motion .was granted, but on appeal the same was reversed (138 App. Div. 898) on the ground that there was nothing in the record to show that the account stated was an account containing items. After the defendant answered he again moved for a hill of particulars. The motion was denied, the learned justice at Special Term, as appears from his memorandum, holding that in view of the former decision of the Appellate Division the defendant- was not entitled to a bill of particulars. The fact that the previous motion for a bill of particulars was denied is no reason why this motion should have been denied, provided a different state, of facts were presented. A different state of facts was presented, because when the motion which resulted in the order here appealed from was made the defendant' had answered, and from which it appears that different accounts were rendered, which are alleged to have been inaccurate, arid in addition that errors and omissions were excepted. From these allegations it is fairly to be inferred that the accounts which were rendered did contain items.

Under such circumstances, the plaintiffs’ cause of action . being predicated upon an account stated, I am of the opinion that the defendant was entitled to have a copy of thé account alleged to have been stated as well as the items which made up that account. (Keyes v. Flint Co., 69 App. Div. 141; Herbert v. Hellbut, 119 id. 426; Wells v. Van Aken, 39 Hun, 315.)

[3]*3The order appealed from, therefore, is reversed, with- ten dollars costs and disbursements, and the motion granted, with ten dollars costs. .

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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McLaughlin, J.:

. The action is upon an account stated. The answer denies that an account was stated between the parties,, and, alleges, as. a separate and distinct defense, that all the accounts rendered by the Frank Si De Bonde .Company to the defendant had upon them letters which indicated that errors and omissions were excepted; that all statements and 'accounts rendered were made from the books of' the corporation, which were inaccurately kept and were not true books of account, and that the'account with the defendant was not a correct account and contained errors and omissions. This is the second appeal. Before the answer was served the defendant moved for a bill of particulars of the account alleged to have been stated. The motion .was granted, but on appeal the same was reversed (138 App. Div. 898) on the ground that there was nothing in the record to show that the account stated was an account containing items. After the defendant answered he again moved for a hill of particulars. The motion was denied, the learned justice at Special Term, as appears from his memorandum, holding that in view of the former decision of the Appellate Division the defendant- was not entitled to a bill of particulars. The fact that the previous motion for a bill of particulars was denied is no reason why this motion should have been denied, provided a different state, of facts were presented. A different state of facts was presented, because when the motion which resulted in the order here appealed from was made the defendant' had answered, and from which it appears that different accounts were rendered, which are alleged to have been inaccurate, arid in addition that errors and omissions were excepted. From these allegations it is fairly to be inferred that the accounts which were rendered did contain items.

Under such circumstances, the plaintiffs’ cause of action . being predicated upon an account stated, I am of the opinion that the defendant was entitled to have a copy of thé account alleged to have been stated as well as the items which made up that account. (Keyes v. Flint Co., 69 App. Div. 141; Herbert v. Hellbut, 119 id. 426; Wells v. Van Aken, 39 Hun, 315.)

[3]*3The order appealed from, therefore, is reversed, with- ten dollars costs and disbursements, and the motion granted, with ten dollars costs. .

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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146 A.D. 1, 130 N.Y.S. 385, 1911 N.Y. App. Div. LEXIS 1814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lundberg-v-ronde-nyappdiv-1911.

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