
    Charles H. Keys, Respondent, v. Otto Hoppe and Christian Hellworth, Copartners, etc., Appellants.
    (Supreme Court, Appellate Term, First Department,
    May, 1914.)
    Contracts — payment made on account — what facts show an open and running account.
    Where, after plaintiff’s salesman had contracted to sell goods to defendants on stated terms, they ordered goods day by day without further express contract, and payments made on account not corresponding in amount with any particular item were credited generally against the entire bill, the facts show an open and running account which could not be split up and sued upon in installments.
    Appeal from a judgment of the Municipal Court of the city of New York, "borough of Manhattan, first district, entered in favor of the plaintiff after a trial "by the, court without a jury.
    Mantón Marks, for appellants,
    Griggs, Baldwin & Baldwin (William L. Marshall, of counsel), for respondent.
   Page, J.

Between the 10th day of July, 1913, and the 3d day of October, 1913, inclusive, the plaintiff from day to day sold and delivered merchandise to the defendants at irregular intervals, every few days, upon terms of thirty days and one per cent off in ten days for cash.” On December 2, 1913, the plaintiff’s agent presented to the defendants a statement of account showing a total delivery of goods between the aforesaid dates to the amount of $1,192.25 and showing payments made on account of $100 on September tenth, $275 on October sixteenth and $153.64 on November twenty-fifth, leaving a balance due of $663.61. On the 1st day of December, 1913, an action was commenced by the plaintiff in the Municipal Court to recover the contract value of the goods delivered up to and inclusive of August 26, 1913, as shown upon the account rendered December 2,1913, totaling $797.75 upon which was credited the $100 paid September tenth and $275 paid October sixteenth, leaving a total demand for judgment of $422.75. In that action judgment was taken against the defendants by default and inquest on December 22,1913.

The present action is brought to recover the balance of the aforesaid account not included in the former action. The defendants claimed at the trial that the facts showed an open and running account between them and the plaintiff, all of which was due at the time the former action was brought, and relied upon the familiar rule of law that judgment in an action for recovery of a part of such an account brought when the whole account is due is a bar to a subsequent action for the balance of the account. The plaintiff does not question the rule of law relied upon by the defendants, but claims that the goods for which recovery is sought were delivered under separate and distinct contracts and the items thereof were not part of an open and running account so as to form an indivisible cause of action. Secor v. Sturgis, 16 N. Y. 548 ; Zimmerman v. Erhard, 83 id. 74. The learned trial justice granted judgment for the plaintiff. I am of the opinion that this was error. The entire case depended upon whether or not the facts disclosed an open and running account. It appears that the plaintiff’s salesman called upon the defendants before the account was started and arranged to sell goods to them upon stated terms and thereafter as the defendants needed merchandise they ordered them day by day without further express contract. On August fifteenth a large order was placed with the plaintiff of which a part was delivered at various times prior to August thirtieth and was included in the former action and a part was delivered subsequently and forms a portion of the present demand. Payments made on account from time to time did 'not correspond in amount with any particular items of merchandise sold and were credited generally against the entire bill. These facts clearly showed an open and running account between the parties which could not be split up and sued upon in instalments. The former action was, therefore, a bar to this action. Lennon Co. v. New York Mail Co., 81 Misc. Rep. 251, and cases therein cited.

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

Guy and Whitaker, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.  