
    Frank C. Kohart, Respondent, v. Edward J. Skou, Appellant.
    Contract— restraint of trade — account stated.
    
    Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 6th day of October, 1913, in favor of the plaintiff, and from an order entered in said clerk’s office on the 3d day of October, 1913, denying his motion for a new trial.
   Per Curiam:

The agreement in suit is an arrangement by two dealers fixing the prices for sales of similar articles, by which they would end a losing and disastrous competition. It is not an unreasonable restraint of trade, because it did not appear that these parties controlled the supply, that the arranged price was excessive, or that any monoply was thereby created. Neither was the agreement illegal, or against public policy, because the subject-matter was fixtures to be used by schools and public buildings, since it is not shown that there were not other competitors, or that the board of education or the city of New York had any cause to complain. As to the terms and basis for mutual payments between the contracting parties, the written agreement is clear and unambiguous; and the amounts and balance between the respective payments were set forth in the first cause of action. This left no proper basis for the erroneous computation alleged as the second cause of action. If the evidence showed an account stated, it was for the $683.90, for which sum plaintiff testified a bill had been rendered to the defendant, about the middle of February, which statement had been retained without objection. This proof was inconsistent with any later “account stated” by rendering a further bill for $841.40. The verdict being based on the second cause of action, therefore, is unsupported by the pleadings or by the proofs. The judgment and order should, therefore, be reversed and a new trial granted, costs to abide the event, unless within twenty days the plaintiff stipulate that the verdict be reduced to $683.90, with interest on that sum from February 14, 1908, in which event the judgment, as so modified, and order are affirmed, without costs of this appeal. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate that the verdict be reduced to $683.90, with interest thereon from February 14,1908, in which event the judgment, as so modified, and the order are affirmed, without costs of this appeal.  