
    MINCER v. GREEN.
    (Supreme Court, Appellate Term.
    May 23, 1905.)
    1. Accounts Stated—Proof.
    In an action on an account stated, plaintiff must stand or fall on his allegation that an account was stated and agreed on, and, failing to prove such agreement, he cannot recover by proving the items of the account. •
    [Ed. Note.—Eor cases in point, see vol. 1, Cent. Dig. Account Stated, §§ 89, 90, 99.J
    2. Same—Judgments—Res Adjudicata.
    A judgment for defendant in an action on an account stated is no bar to an action for goods sold and delivered, though such sale and delivery was the subject in reference to which it was claimed there had been an account stated.
    Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action by Jacob L. Mincer against George W. Green. From a municipal court judgment in favor of defendant, plaintiff appeals.
    Reversed.
    Argued before SCOTT, P. J., and TRUAX and DOWLING, JJ.
    Marks & Marks, for appellant.
    Wellbrock & Reynolds, for respondent.
   SCOTT, P. J.

There was practically no denial by defendant that he had purchased the goods sued for (except one overcoat), and there was no proof that he had paid any more than the plaintiff admitted receiving. Therefore the judgment for the defendant can be accounted for only upon the theory that the justice deemed that the judgment for defendant in the former action was a bar to this. The nature of that action and the issues triable therein are determined by the pleadings, which were written. Upon a reference to the complaint, it will be' seen that the action was solely upon an account stated. In such an action the plaintiff must stand or fall upon his allegation that an account was stated and agreed upon. Failing that, judgment must go against him, for he may not recover by proving the items of the account. Johnston v. Tyng, 1 App. Div. 610, 37 N. Y. Supp. 516. It was in consequence of this rule that it was held in Derleth v. De Graef, 51 N. Y. Super Ct. 369, that a judgment for defendant upon a cause of action founded upon an account stated is not a bar to an action for goods sold and de-' livered, although such sale and delivery was the subject in reference to which it was claimed that there had been an account stated. This is the law applicable to the case at bar.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.  