
    WEIDENREICH v. BORINE MFG. CO.
    (Supreme Court, Appellate Term.
    December 9, 1908.)
    Account Stated (§ 19)—Evidence.
    Evidence held insufficient to sustain a judgment for plaintiff on the theory of an account stated.
    [Ed. Note.—For other cases, see Account Stated, Cent. Dig. § 93; Dec. Dig. § 19.*] •
    Appeal from Municipal Court, Borough of Manhattan, Fourth District.
    Action by Michael Weidenreich against the Borine Manufacturing Company. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Armied before GIRDERSDEBVE, P. J„ and MacREAN and SEA-BURY, JJ.
    Edgar H. Rosenstock, for appellant.
    Benj. R. Brandner, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

This action was tried on the theory of an account stated for $40. The evidence of such account stated is that of plaintiff as follows:

“Q. Did you talk to Mr. Strassburger [defendant’s president] about this balance? A. Yes, sir.
“Q. What did he say to you? A. He did not have the money.
“Q. Did he say he would pay it to you ? A. No; he said there were some differences between us.
“Q. You asked him for the money, and he refused to pay it to you? A. Yes, sir.”

On cross-examination plaintiff testified thus:

“Q. He [defendant] denied that $40 were owing to you? A. No; he did not. * * * He said he would have to go over the books.
“Q. He did not admit that $40 were due? A. No. * * * He could not admit it because he did not know anything about the books.”

The evidence is insufficient to sustain the judgment, which should be reversed.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.  