
    Warriner Smith Utilities, Inc., Plaintiff, v. Samuel Levine, Defendant.
    Supreme Court, Rockland County,
    January 25, 1932.
    
      Selzer & Fischman, for the plaintiff.
    
      Benjamin Haas, for the defendant.
   Taylor, J.

The plaintiff sues only upon an alleged account stated between the parties. The allegation as to the account stated is denied by the defendant. Such an account stated determines only the amount of the debt where a liability exists; it cannot be made the instrument to create per se a liability if and where none before existed. (Stocking v. Seed Filter & Mfg. Co., 175 App. Div. 812.) I am of the opinion and decide that the matter pleaded in each of the several affirmative defenses, the sufficiency of which is questioned by the plaintiff upon this motion, is unnecessary in the pleading and that each defense is insufficient in law upon its face, although some of the matter pleaded might well be made the basis of a counterclaim or counterclaims. No counterclaim is pleaded in the present answer. Further, in my opinion, many of the facts pleaded in the so-called defenses may be proved upon the trial under the denial aforesaid. (See, as to possible counterclaim, Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324.)

The plaintiff’s motion to strike out the first, second, third and fourth defenses is granted, with ten dollars costs of the motion to the plaintiff to abide the event of the action, but with leave to the defendant, if so advised, to serve an amended answer containing a counterclaim or counterclaims on payment of the said sum of ten dollars motion costs. Settle order on notice before me at Mount Vernon.  