
    Gurney, Becker & Bourne, Inc., Respondent, v Benderson Development Company, Inc., Appellant.
    Argued June 8, 1979;
    decided July 10, 1979.
    APPEARANCES OF COUNSEL
    
      Robert S. Weinstein for appellant.
    
      Richard F. Griffin, Courtland R. La Vallee and Harry F. Mooney for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and a new trial granted.

In this action commenced by plaintiff, a licensed real estate broker, for commissions due when a tenant exercised its renewal option, it was error for the trial court to submit this case to the jury as an action based on an account stated. The rule that an account which has been rendered and to which no objection has been made within a reasonable time should be regarded as admitted by the party charged as prima facie correct assumes that there exists some indebtedness owing between the parties or an express agreement between the parties to treat the statement as an account stated although such statement may encompass amounts not yet due if there remain no further obligations to be performed by the party claiming payment. (American Lithographic Co. v Dorrance-Sullivan & Co., 241 NY 306; Jugla v Trouttet, 120 NY 21; Bauer v Ambs, 144 App Div 274; see, generally, 1 NY Jur, Accounts and Accounting, §§ 5-7.)

Here, at the time the letter containing the typewritten notation of “[additional commission due and payable if tenant remains for another five years after 9/30/72” (emphasis supplied) was received, there was no commission due on the renewal option, inasmuch as the option had not yet been exercised. Since an account stated cannot be made the instrument to create liability when none exists and since defendant had not expressly agreed to treat this letter as an account stated with respect to the commission contingent upon renewal, the trial court erred in submitting this case to the jury on an account stated theory.

This is not to say that the jury could not find upon the evidence presented that defendant was required to pay a commission on the renewal term on the theory of implied contract. However, inasmuch as this case was submitted to the jury on both implied contract and account stated theories and a general verdict was returned, it is impossible to determine whether the erroneous charge predicated on an account stated theory was the basis of the verdict. A new trial is, therefore, necessary.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchs-berg taking no part.

Order reversed, etc.  