
    Emmett Stevens, Resp’t, v. Marshall J. Ayers, Adm’r, App’lt.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    1. Account stated — Facts necessary to constitute.
    It is essential to an account stated that the party to be charged should, either expressly or by implication, admit the correctness of the account as a claim against him.
    2. Same.
    On presentation of the claim in suit to defendant’s testator, he expressed surprise at the amount; declared that it belonged to another person to pay; suggested a possible defense or counterclaim, and ended with a promise to pay to avoid trouble. Held, that this was no admission that the indebtedness was his own or of the correctness of the amount and that the facts did not constitute an account stated.
    Appeal from an order of the Monroe special term, denying defendant’s motion to confirm the report of a referee and granting plaintiff’s motion for a new trial, in a case of a reference, under the statute, of a disputed claim against the estate of a deceased person.
    
      Eli Soule, for app’lt; DeM. Page, for resp’t.
   Dwight, P. J.

The claim referred was against the estate of Thomas Hallett, deceased, as upon an account stated in his lifetime. The evidence in support of it was in the testimony of an attorney who presented a statement of the amount to Mr. Hallett a month before his death, and who gave the following version .of what took place: “ I think he took it and looked at it and said the account was larger than he thought it was, and said that Perry ought to have paid it. I said that I did not know anything about that, but that it was left with me to sue if not paid at once. He said Emmett better not sue it as he was carrying a watch that belonged to him. I said that had nothing to do with it, as my instructions were to sue it He then says I will see Emmett and pay it. I will have no trouble about it.”

This narrative, substantially repeated on cross-examination, is all the evidence in the case in support of the plaintiff’s claim We think it falls short of establishing an account stated between the plaintiff and the deceased.

It is essential to an account state that the party to be charged should, either expressly or by implication, admit the correctness of the account as a claim against him. In this case the deceased began by expressing surprise at the amount of the bill; then declared that it belonged to another person to pay it; then suggested a possible defense or counterclaim, and ended by a naked promise to pay it to avoid trouble. All this, it is true, he might have done if the indebtedness had been his own and the amount undoubtedly correct; but what he said was ;no admission of either, of those facts, while his promise to pay rather Kthan have trouble indicated an unwillingness to concede that the amount represented a just debt which he was bound to pay.;

Moreover the account as presented to the administrator shows on its face that the principal item originated in transactions bo-. tween the plaintiff and Perry HaUett, the person mentioned by the deceased as the one who ought to have paid the account.

The item referred to is as follows:

“September 1, 1882, to amount due on dissolution of partnership between Perry J. Hallett and Emmett Stevens, $112.”

The item is entirely unexplained by the evidence; there is nothing to suggest a reason why Thomas Hallett should have been asked to pay it. In order to charge his estate with its payment after his death, on the principle of an account stated, the evidence of his admission of its correctness, as a charge against him, should be clear and unequivocal

Of course there could be no recovery upon the promise of the deceased as such. An account stated consists not in a promise to pay but in an admission that the account is just and true. The promise is of no effect except by way of admission that the debt is that of the promisor. If it is that of another, such a promise is without consideration and void by the statute of frauds.

The evidence being undisputed it was a question of law whether the facts constituted an account stated. Lockwood v. Thorne, 18 N. Y., 285, 288. We think the referee was justified in this case in holding that an account stated was not established, and that his report dismissing the claim should have been confirmed.

The order of the special term should be reversed and the report of the referee confirmed.

Macomber and Corlett, JJ., concur.

.Order of special term reversed and report of the referee confirmed, with costs of this appeal and of the special term.  