
    Angelo Bove, Appellant, v. The Croton Falls Construction Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Account stated — action upon an — discovery on trial of error of different amount than alleged in complaint — verdict.
    Where, in an action upon an account stated consisting of a large number of items which correctly added should have been stated to be $1,581.49 instead of $1,697.49 as- alleged in the complaint, the error was discovered on the trial, an order setting aside a verdict for the smaller amount will be reversed and the verdict reinstated, as defendant • could in no way be prejudiced thereby.
    ' Appeal by plaintiff from an order of the City Court of the city of New York, setting aside a verdict in favor of plaintiff for $1,581.49 together with interest.
    Simon & Harris (Maxwell S. Harris, of counsel), for appellant.
    O’Brien, Boardman & Platt (Livingston Platt, of counsel), for respondent.
   Seabury, J.

This action is upon an account stated. The account consisted of a large number of items. The total amount was stated to be $1,697.49. The items of the account were not correctly added, and should have been stated to be $1,581.49, instead of $1,697.49. The evidence shows that the parties went over the account item by item, and agreed upon each item, and acting upon the belief that the sum of the several items had been correctly stated, abalance of $1,697.49 was struck.. Upon the trial the error in addition was discovered, and the jurors, after deliberating upon the issues asked the court if they might find a verdict for the correct amount. The court charged the jury that they might find a verdict for either sum. The jury returned a verdict in favor of the plaintiff for $1,581.49. The court set aside the verdict aside, on the ground that it was error to permit the jury to find a verdict for $1,581.49, since the amount of the balance alleged to be due in the complaint was $1,607.49, and ordered a new trial. From the order entered upon that decision, plaintiff appeals to this court. We think that the learned court below erred in setting aside the verdict of the jury. The account upon which the plaintiff sued did not consist merely of the balance appearing at the foot of the account. It consisted of several items, each of which was carefully gone over by the parties, and the obvious intent of the parties was to agree upon the correct sum of these items as the amount of the balance due from the defendant to the plaintiff. The fact that there was an error in calculating the sum of the items did not preclude the plaintiff from suing upon the account which had been stated between the parties, nor did it give the plaintiff the right to recover from the defendant a greater sum than the parties had, in fact, agreed upon. The view taken in the court below that the balance struck was $1,697.49, and that the plaintiff was confronted with the alternative of getting a verdict for this amount, which was more than he was entitled to, or nothing at all, involved too strict and literal an interpretation of the meaning of an account stated. The items having been agreed upon, it is clear that the balance which the parties intended to be stated was the correct sum of the items. The error in addition did not change the character of the account stated, nor did it oblige the plaintiff to take a verdict for more than he was entitled to receive, or else to have his complaint dismissed. The correct sum of the items was the substance of the account, and represented the amount which the parties, in fact, agreed should represent the balance. The claim of the respondent is an attempt to magnify an error in the calculation of the account which has no relation to its substance into a barrier which shall preclude the plaintiff from recovering the correct amount of his claim.. The respondent could in no way be prejudiced by the fact that the jury rendered a verdict against it for $1,581.49, the correct amount, instead of $1,697.49, the amount incorrectly claimed in the complaint to be due.

The order appealed from is reversed, with costs, and the verdict of the jury is reinstated, with costs to the appellant.

Page and Bijur, JJ., concur.

Order reversed, with costs, and verdict reinstated, with costs to appellant.  