Warriner Smith Utilities, Inc. v. Levine

New York Supreme Court

Warriner Smith Utilities, Inc. v. Levine

143 Misc. 42, 255 N.Y.S. 200, 1932 N.Y. Misc. LEXIS 1337

DecidedJanuary 25, 1932

StatusPublished

This text of 143 Misc. 42 (Warriner Smith Utilities, Inc. v. Levine) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Warriner Smith Utilities, Inc. v. Levine, 143 Misc. 42, 255 N.Y.S. 200, 1932 N.Y. Misc. LEXIS 1337 (N.Y. Super. Ct. 1932).

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Opinion

Taylor, J.

The plaintiff sues only upon an alleged account stated between the parties. The allegation as to the account stated is denied by the defendant. Such an account stated determines only the amount of the debt where a liability exists; it cannot be made the instrument to create per se a liability if and where none before existed. (Stocking v. Seed Filter & Mfg. Co., 175 App. Div. 812.) I am of the opinion and decide that the matter pleaded in each of the several affirmative defenses, the sufficiency of which is questioned by the plaintiff upon this motion, is unnecessary in the pleading and that each defense is insufficient in law upon its face, although some of the matter pleaded might well be made the basis [43]*43of a counterclaim or counterclaims. No counterclaim is pleaded in the present answer. Further, in my opinion, many of the facts pleaded in the so-called defenses may be proved upon the trial under the denial aforesaid. (See, as to possible counterclaim, Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324.)

The plaintiff’s motion to strike out the first, second, third and fourth defenses is granted, with ten dollars costs of the motion to the plaintiff to abide the event of the action, but with leave to the defendant, if so advised, to serve an amended answer containing a counterclaim or counterclaims on payment of the said sum of ten dollars motion costs. Settle order on notice before me at Mount Vernon.

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Taylor, J.

The plaintiff sues only upon an alleged account stated between the parties. The allegation as to the account stated is denied by the defendant. Such an account stated determines only the amount of the debt where a liability exists; it cannot be made the instrument to create per se a liability if and where none before existed. (Stocking v. Seed Filter & Mfg. Co., 175 App. Div. 812.) I am of the opinion and decide that the matter pleaded in each of the several affirmative defenses, the sufficiency of which is questioned by the plaintiff upon this motion, is unnecessary in the pleading and that each defense is insufficient in law upon its face, although some of the matter pleaded might well be made the basis [43]*43of a counterclaim or counterclaims. No counterclaim is pleaded in the present answer. Further, in my opinion, many of the facts pleaded in the so-called defenses may be proved upon the trial under the denial aforesaid. (See, as to possible counterclaim, Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324.)

The plaintiff’s motion to strike out the first, second, third and fourth defenses is granted, with ten dollars costs of the motion to the plaintiff to abide the event of the action, but with leave to the defendant, if so advised, to serve an amended answer containing a counterclaim or counterclaims on payment of the said sum of ten dollars motion costs. Settle order on notice before me at Mount Vernon.

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143 Misc. 42, 255 N.Y.S. 200, 1932 N.Y. Misc. LEXIS 1337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warriner-smith-utilities-inc-v-levine-nysupct-1932.

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