
    Robert Townsend, Appellant, v. Sidney S. Meyers, Respondent.
    First Department,
    November 19, 1909.
    Pleading— allegations impeaching an account stated.
    Although an account stated cannot be impeached except for fraud or mistake, a complaint attacking such account need not use the words of opprobrium if it allege facts showing fraud or mistake.
    Thus, where a complaint alleges in substance that after the dissolution of a partnership between the parties and an accounting, the plaintiff, for the first time discovered that the defendant had received moneys on account of the partnership business, which he had conducted in his own name and did not disclose on the accounting, the complaint should not be dismissed merely because the fraud or mistake shown by such acts are not characterized as such.
    Appeal by the plaintiff, Robert Townsend, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of May, 1909, upon the decision of the court dismissing the complaint at the ■opening of a trial at the New York Special Term.
    
      Clarence Blair Mitchell of counsel [Cambridge Livingston attorney], for the appellant.
    
      Edward W. S. Johnston of counsel [Samuel Bitterman, attorney], for the respondent.
   Clarke, J.:

This is an appeal from a judgment entered on a dismissal of the complaint at tile opening of the trial upon the ground that it did not state facts sufficient to constitute a cause of action.

The complaint alleges that on or about the 1st day of January, 1902, to on or about the 16th day of September, 1902, plaintiff and defendant were copartners in the practice of the law ; that under the copartnership agreement plaintiff and defendant were interested financially in all business which came to their said office in the proportion of each to take one-half; that the plaintiff was then an assistant district attorney and that most of his time was passed in the performance of his official duties and that at all times herein-before mentioned the defendant was engaged in managing the office of tile said copartnership and had charge of all the books and accounts; that on the 16tli of September, 1902, the said copartnership was dissolved and adjustment of accounts was had between the parties; that on said adjustment no mention was made by defendant of a certain action in which Strange was plaintiff and certain railroads were defendants, in which Meyers appeared as the attorney for said Strange; that the said action was brought as the result of in juries received in an accident on the §th 0f January, 1902, during the aforesaid copartnership; that the defendant received as attorney for said Strange the sum of §10,500 on May 22, 1902, and that after proceedings against him in court to compel payment to his client (set up in extenso), defendant finally was allowed to retain §4,150 as counsel fee. The complaint alleges that the plaintiff’s first knowledge of said action was on the 20th of March, 1906, when he was informed of this summary proceeding against the defendant as attorney, and plaintiff alleges that he has requested of the defendant a statement and account of the aforesaid copartnership transaction, which the defendant refused to give, and demands judgment that an account be taken of said copartnership transaction.

The general proposition that an account stated may not be impeached except for fraud or mistake is well settled. The respondent claims that the complaint having set up an adjustment of accounts and not having in words alleged fraud or mistake, the dismissal thereof was correct.

Characterizing conduct by words of opprobrium is not necessary when the acts themselves are set up. If those acts necessarily lead to a certain conclusion, that conclusion, especially on a motion which is like a demurrer, should be drawn by the court, and it is not necessary that it should be set up by the pleader.

If the Strange case did come into the-office during the existence of the partnership, and if defendant did receive $10,500 in settlement thereof during said period, of which he finally retained $4,150 for himself, and if he appeared in the case in his own name and did not disclose it to his partner, and made no mention thereof in the accounts adjusted, which he submitted, he having entire control of the books and papers, and these facts were not discovered for some years thereafter, and then only as a result of proceedings in court under which defendant was compelled to pay over to his client a portion of that which he had retained for his own use, it seems to me that all the necessary facts are alleged which indicate fraud by the defendant, and a mistake on the part of the plaintiff in agreeing to the adjustment of accounts which in no way covered that item. It follows that the account is impeached upon the "grounds allowed by law and, therefore, facts sufficient to constitute a cause of action are alleged in the complaint and the dismissal thereof was error.

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

Patterson, P. J., Ingraham, MoLaughlin and Laugiilin, JJ., concurred.

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