
    John K. Rishel et al., Respondents, v. August Weil et al., Appellants.
    (Supreme Court, Appellate Term,
    March, 1900.)
    Defense — Account stated must be pleaded.
    The defense of an account stated is affirmative in its nature and is not available unless pleaded.
    Rishel v. Weil, 30 Mise. Rep. 809, affirmed.
    
      Appeal by defendants from a judgment of the General Term of the City Court of the city of Hew York, affirming the judgment entered upon a verdict in favor of plaintiffs.
    Alexander & Colby (John Quinn, of counsel), for appellants.
    !A. Kling, for respondents.
   Per Curiam.

The defense contained in the answer was in effect an affirmative defense, namely, that of payment. Defendants having admitted by their answer the sale and delivery of the goods, and having plead payment, the motion to dismiss the complaint at ¡the close of plaintiffs’ case was rightly denied. The fifth allegation in the complaint is simply a conclusion of law drawn from the third and fourth allegations of the complaint, and is unnecessary. The defendants requested the court to charge that a statement of account showing a balance due, accompanied by a check for that balance, if retained by the plaintiffs beyond a reasonable time without exception or disclaimer as to its correctness, became an account stated, and committed the person to whom such account was rendered to the correctness of the items therein contained. This the court refused to charge, and to this refusal the defendants duly excepted. The refusal of the court to charge as requested was not error, because there was no such defense set up in the answer. A defense of the kind suggested by the request is an affirmative defense and-must be pleaded. If it had been pleaded, plaintiffs then could have shown mistake or error in the account rendered. Lockwood v. Thorne, 11 N. Y. 170. Hot having been apprised by the pleading of such a defense, plaintiffs were not bound to anticipate it.

- The trial judge did not err in refusing the defendants’ request to go to the jury on the question of the amount the defendants should have been credited with on the return of the Richardson goods. As between plaintiffs and defendants, the plaintiffs should be charged for the goods above mentioned, only the sum that they had been allowed for them.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment and order affirmed, with costs.  