Williams v. . Glenny

16 N.Y. 389

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The paper produced by the defendant was evidence merely, and not in any sense conclusive in its nature. There was no proof of an acquiescence in it, or an assent to its correctness, on the part of the defendant. From the unsigned receipt at the foot, it would appear to have been tendered for immediate payment, but it was not pretended that payment had been made, nor was it shown when or under what circumstances the paper came into the possession of the defendant. Had it been a settled account, it would have been subject to be reëxamined upon proof of a mistake; and we cannot say that the evidence produced by the plaintiff to prove the prices, was not of such a nature as to show that the claim for this considerably smaller sum was clearly a mistake. But I do not think a claim for a round sum, where the subject of the demand is one which would naturally consist of many items, is in the nature of an account. It is no doubt an admission, and as such prima facie evidence, limiting the plaintiff's claim to the amount mentioned. But we must presume that the plaintiff gave evidence sufficient fairly to overcome the presumption which the paper afforded.

The judgment should be affirmed.