
    Paul M. Kaminsky, Respondent, v. Louis Mendelson, Appellant.
    (Supreme Court, Appellate Term,
    December, 1898.)
    Account stated — Proof of payments, when such an account is denied.
    The rule that an account stated is conclusive and is impeachable only for fraud, mistake or manifest error, has no application where the defendant, by his answer and by proof, denies that an account was ever stated between him and the defendant; and, upon such a state of the pleadings and proof, it is improper for the court to exclude evidence of payments made by the defendant to the plaintiff prior to the time when the complaint alleges that an account was stated between the parties.
    Appeal from a judgment of the Second Municipal Court, borough of Manhattan, in favor of the plaintiff.
    Adolph Cohen, for appellant.
    W. Klingenstein, for respondent.
   Gildersleeve, J.

The pleadings are in writing. The complaint alleges that between December 23, 1897, and May 2, 1898, the plaintiff, at the request of defendant, performed work and rendered services for him; that on May 12, 1898, the plaintiff and defendant stated an account between them, by which there was found to be due from defendant to plaintiff the sum of $99.74, which was demanded and refused; and the complaint asks judgment for this sum, with interest. The answer denies that there was any account stated; denies that defendant is indebted to plaintiff in any sum whatever; alleges that the plaintiff has been paid in full for his work and services; and the answer further sets up a counterclaim for $6.65 for money paid in excess for the services rendered by the plaintiff.

The plaintiff filed a bill of particulars, setting forth- the items of the services performed by him, with the sums charged therefor, wdiich amounted to the sum of $272.07, upon which the sum" of $172.33 is credited as having been paid, which leaves a balance due of $99.74.

The plaintiff was put upon the stand, and testified as to the performance of the services, and as to their value, and also he swore that on May 12, 1898, an account was stated between himself and defendant, and that the amount due to plaintiff was fixed at $99.74. The defendant and his witnesses denied that any account was stated, and, in support of their contention, endeavored to show that the items, upon which the plaintiff’s claim was based, had been paid. The defendant sought to introduce checks, showing payments to the plaintiff previous to the 12th of May, 1898; but the justice refused to allow the introduction of any evidence of payment previous to the date aforesaid, holding, apparently, that there was an account stated, fixing the indebtedness of defendant at $99.74, and that this account stated was conclusive between the parties.

It is true that an account stated is conclusive upon the parties to it, unless impeached for fraud or mistake (see Stenton v. Jerome, 54 N. Y. 484); and that an account stated can only be opened where the party objecting shows clearly that he has been misled by fraud, mistake or manifest error. See Harley v. Eleventh Ward Bank, 76 N. Y. 618. But, in the case at bar, the existence of the account stated is put in issue; and it was clearly competent for defendant to prove the payment of the items upon which plaintiff’s ■claim is based, were it only for the purpose of supporting defendant’s contention that there was no account stated.

It is unnecessary to discuss the other aspects of the case, as the reason above indicated is sufficient to require a reversal.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and G-iegerich, J., concur.

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