Stein v. Stein

Appellate Division of the Supreme Court of New York

Stein v. Stein

140 A.D. 306, 125 N.Y.S. 244, 1910 N.Y. App. Div. LEXIS 2923

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

DecidedOctober 21, 1910

StatusPublished

Cited by3 cases

This text of 140 A.D. 306 (Stein v. Stein) 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

Stein v. Stein, 140 A.D. 306, 125 N.Y.S. 244, 1910 N.Y. App. Div. LEXIS 2923 (N.Y. Ct. App. 1910).

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Opinion

Per Curiam :

The complaint alleged that “ on or about the ninth day of February, 1904, an account was stated between the plaintiff and the defendant and upon such statement a balance of Thirty-six thousand three hundred and two and T8^ ($36,302.85) dollars was found due to the plaintiff from the defendant, and the defendant then and [307]*307there promised and agreed to pay the said sum, but no part thereof has been paid,” and demanded judgment for said sum. The answer denied each and every allegation in said complaint contained.

Defendant .made a motion for a bill of particulars which was granted by an order providing that the plaintiff serve “ a bill of particulars setting forth the items comprised in the account alleged to have been stated between the parties hereto, alleged' in the complaint.” Thereupon the plaintiff served a bill of particulars as follows : “ The items comprised in the account alleged to have been stated between the parties hereto are as follows: The sum of $36,302.85 in which sum the defendant Jule Stein is indebted to the plaintiff Leo Stein.” Said bill of particulars was returned by the attorney for the defendant on the ground that it failed to comply with the requirements of the order, and thereupon plaintiff made a motion to compel the defendant to accept the service of said bill, which motion was denied, and from the order entered upon said denial the plaintiff appeals.

The complaint alleges that an account was stated between the parties. This the defendant denies. That is the issue presented upon these pleadings. An account stated may consist of a single item. The plaintiff avers that that is the case here. If he succeeds it must be upon the distinct issue tendered by him. If an account has been stated, the items only of that account so stated upon the issues here presented could properly come before the court.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to the appellant.

Present — Ingraham, P. J.,McLaughlin, Laughlin, Clarke and Scott, JJ.

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

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Per Curiam :

The complaint alleged that “ on or about the ninth day of February, 1904, an account was stated between the plaintiff and the defendant and upon such statement a balance of Thirty-six thousand three hundred and two and T8^ ($36,302.85) dollars was found due to the plaintiff from the defendant, and the defendant then and [307]*307there promised and agreed to pay the said sum, but no part thereof has been paid,” and demanded judgment for said sum. The answer denied each and every allegation in said complaint contained.

Defendant .made a motion for a bill of particulars which was granted by an order providing that the plaintiff serve “ a bill of particulars setting forth the items comprised in the account alleged to have been stated between the parties hereto, alleged' in the complaint.” Thereupon the plaintiff served a bill of particulars as follows : “ The items comprised in the account alleged to have been stated between the parties hereto are as follows: The sum of $36,302.85 in which sum the defendant Jule Stein is indebted to the plaintiff Leo Stein.” Said bill of particulars was returned by the attorney for the defendant on the ground that it failed to comply with the requirements of the order, and thereupon plaintiff made a motion to compel the defendant to accept the service of said bill, which motion was denied, and from the order entered upon said denial the plaintiff appeals.

The complaint alleges that an account was stated between the parties. This the defendant denies. That is the issue presented upon these pleadings. An account stated may consist of a single item. The plaintiff avers that that is the case here. If he succeeds it must be upon the distinct issue tendered by him. If an account has been stated, the items only of that account so stated upon the issues here presented could properly come before the court.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to the appellant.

Present — Ingraham, P. J.,McLaughlin, Laughlin, Clarke and Scott, JJ.

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

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Bluebook (online)

140 A.D. 306, 125 N.Y.S. 244, 1910 N.Y. App. Div. LEXIS 2923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stein-v-stein-nyappdiv-1910.

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