
    The New York Cab Co., Limited, Respondent, v. Moses R. Crow, Appellant.
    (Supreme Court, Appellate Term,
    April, 1898.)
    Account stated — Presentation of account.
    Mere proof that a creditor had mailed certain bills, of contents not shown, to a. debtor on the 1st and 15th of every month, not accompanied by any proof that the account in suit had 'ever been in any manner presented to him or that he had ever made any agreement to pay it, based upon presentation, is insufficient to support an action as for an account stated.
    Apbeal from judgment of the District Court in the City of New York, for the eighth judicial district, in favor :o£ the plaintiff.
    Eranklin Bien, for appellant.
    J. C. Devereaux, for respondent.
   Beekman, P. J.

This action was brought to recover upon an account stated. The plaintiff, however, was unable to¡ show that the particular account sued on, which was offered in evidence, had-ever been presented tó the defendant, or that any agreement to pay based on the rendition of such account had ever been made. It was stated by one of the witnesses for the plaintiff that certain bills had been mailed to the defendant on the first and fifteenth days of every month, hut there was no evidence in the case to show what such hills contained or how they were mailed.

It is true where the creditor has mailed an account to his debtor showing the transactions had between them, and a balance due, that is ordinarily sufficient to make out a prima facie case of an account stated, if coupled with proof that after the lapse of a reasonable time no objection to the account was made. The law then presumes that it has been received and examined by the debtor, and that he has acquiesced in its correctness. ITpon this an implied promise to pay the amount claimed arises. Lockwood v. Thorne, 11 N. Y. 170; Stenton v. Jerome, 54 id. 480. The creditor, however, must show what the particular account was which-he transmitted, and that it was duly forwarded to the debtor.

There is no competent proof in the case before us with respect to either of these essential 'elements. The plaintiff, therefore, failed to make out a cause of action against the defendant, and the motion made to dismiss the complaint on that ground should have been granted. It follows that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Gildersleeve and Giegerich, JJ., concur.

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