
    Jacob L. Mincer, Appellant, v. George W. Green, Respondent.
    (Supreme Court, Appellate Term,
    May, 1905.)
    Defense — Former adjudication — Judgment for defendant in action on account stated — No bar to subsequent action for goods sold and delivered.
    A judgment for the defendant, in an action upon an account stated, is not a bar to a subsequent action against him for goods sold and delivered, in which the plaintiff seeks to recover for the same goods specified in the account.
    Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, ninth district, borough of Manhattan.
    Marks & Marks, for appellant.
    Wellbrock & Reynolds, for respondent.
   Scott, J.

There was practically no denial by defendant that he had purchased the goods sued for (except one overcoat) and there was no proof that he had paid any more than the plaintiff admitted receiving. Therefore the judgment for the defendant can be accounted only upon the theory that the justice deemed that the judgment for defendant in the former action was a bar to this. The nature of that action and the issues triable therein are determined by the pleadings-which were written. Upon a reference to the complaint it will he seen that the action was solely upon an account stated. In such an action the plaintiff must stand or fall upon his. allegation that an account was stated and agreed upon. Failing that judgment must go against him, for he may not recover by proving the items of the account. Johnson v. Tyng, 1 App. Div. 610. It was in consequence of this rule that it was held in Derleth v. De Graaf, 51 N. Y. Super. Ct. 369, that a judgment fo-r defendant upon a cause of action founded upon an account stated, is not a bar to an action for goods sold and delivered although such sale and delivery was the subject in reference to which it was claimed that there had been an account stated. This is the law applicable to the case at bar.

Truas and Dowling, JJ., concur.

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