
    Curtis-Blaisdell Company, Appellant, v. George W. Lederer, Respondent.
    (Supreme Court, Appellate Term, First Department,
    November, 1913.)
    Account stated — action on — denial of knowledge or information sufficient to form a belief not sham.
    Where, though plaintiff in an action on an account stated for coal furnished to defendant fails to prove his express promise to pay, but shows that daily bills had been submitted to him as each lot of coal was delivered and that monthly bills were sent on the first of each month, one of them on the date of the account stated, and was prevented from showing that no objection was ever made to said bills, an account stated would have been made out or the testimony would have warranted the submission of that issue to the jury, and a judgment entered on the dismissal of the complaint at the dose of plaintiff’s ease must be reversed and a new trial ordered.
    Defendant’s denial of knowledge or information sufficient to form a belief as to the account stated was not necessarily as to a matter within his personal knowledge, and, therefore, not sham.
    ' Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint at the close of plaintiff’s case.
    William C. Relyea, for appellant.
    Franklin Bien, for respondent.
   Bijur, J.

Plaintiff sued on what it calls two causes of action, one for coal sold and delivered, and the other on an account stated, June 1, 1912, for the same coal. The sale and the delivery were not proved so that the first cause of action was properly dismissed.

As to the second cause of action, plaintiff failed to prove an express promise to pay. It did prove, however, that daily bills had been sent to the defendant as each lot of coal was delivered and that monthly bills were sent on the first of each month, one of them on June 1, 1912. Plaintiff was erroneously prevented from proving that no objection had ever been made to these bills. ÍTpon this state of facts an account stated as of June 1, 1912, would have been made out, or, at least, the evidence would have warranted the submission of that issue to the jury. See Lockwood v. Thorne, 11 N. Y. 170; Spellman v. Muehlfeld, 166 id. 245.

Appellant has made .a point which may arise on the new trial, and should, therefore, be disposed of. It moved at the opening for judgment on the second cause of action on the ground that its plea of account stated had been denied by the defendant in the form of denial of knowledge or information sufficient to form a belief, and that such denial, as to a matter which must have been within defendant’s personal knowledge, was a sham, citing Kirschbaum v. Eschmann, 205 N. Y. 127, 132, 133. It is evident without further argument from a recital of the facts upon which the inference of an account stated is based that the allegation is not one of the character referred to in the Kirschbaum case, of which personal knowledge on the part of the defendant must necessarily be predicated.

Seabury and Guy, JJ., concur.

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