
    Ellis H. Crow, Resp’t, v. Patrick J. Gleason, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 20, 1892.)
    
    1. Evidence - Stipulation— Construction.
    Plaintiff, a liveryman, brought an action to recover for horse hire, extending through a period of ten years, against a corporation of which defendant was an officer. Most of plaintiff’s books of original entry had been lost. It appearing that defendant had hired the horses individually, a stipulation was made for a discontinuance of that action; that the evidence taken thereon should be part of the proof in an action against defeadant individually; that the accuracy of plaintiff’s account should be tested by proof of the particular items charged for one week during the period of the lost books, and of one or more items during the time for which books were produced, and that all other items in plaintiff’s ledger and bill of particulars to stand as if they "were sufficiently proven in same way. Held, that plaintiff having given the proof required by the stipulation before it was entered into could not be made to give such proof de nemo, and that the lo.daers wei e properly received in evidence..
    (Van Brunt, P. J., dissents.)
    
      2. Payment—Running account—Evidence.
    The defense of payment is not established by proof that plaintiff rendered bills weekly ; and the production of receipts showing that a large number of such bills had been paid shortly after presentation, and proof that similar receipts had been lost, when the evidence of plaintiff shows that the items of such bills and receipts formed part of and entered into a running account.
    Appeal from a judgment in favor of plaintiff, entered upon the report of a referee.
    
      Jesse Johnson, for app’lt; Edwin R. Leavitt, for resp’t.
   Patterson, J.

This appeal is from a judgment entered on the report of a referee, who found in favor of the plaintiff on one of the two causes of action set forth in the complaint That cause of action was in substance and effect for the balance of an account for horse hire, sucli account beginning with a debit under date of April 26, 1875, and ending with a credit on the 13th day of No-" vember, 1885. Annexed to the complaint is a long itemized account, which, on the trial, was treated by both parties as a bill of particulars. The answer admits that, during the period embraced within the dates mentioned, the defendant did hire horses from the plaintiff ; but it denies that such hiring was of the number of horses or that the defendant is indebted in the amount stated in the bill of items ; and it also averred that payment was made of all that was due and owing the plaintiff; the defendant having settled and paid weekly bills rendered for all horses hired by him. The defense of the statute of limitations is also pleaded to the demand. The account was kept and the items originally charged against the Long Island City Railroad Company, with which the defendant was officially connected, and a suit against that company for the identical balance of indebtedness now claimed was brought by the plaintiff, defended, and the issues therein were referred. On the hearing of that action it appeared by the testimony of the present defendant that he personally hired all the horses on his own account; that the transactions were between himself and the plaintiff, and that he used the horses in his own business. Thereupon a stipulation was made which is all important in this case ; the action against the railway company was discontinued, a new one against this defendant was begun; was referred to the same referee to hear and determine, and the testimony taken in the prior action was made part of the proofs in this.

To sustain his claim, the plaintiff undertook the task of proving or establishing each item of the bill of particulars. It was not an account stated. It had never been rendered as a whole, and no promise was made, and no circumstances were shown from which one could be implied, to pay the balance. The plaintiff put in evidence certain ledgers containing postings from books of original entry of all the items charged and credited. He also showed that he kept what are called horse books,” in which were recorded from day to day the number of horses hired by the defendant and the charges therefor. Testimony was given by the servants of the plaintiff to the effect. that those books were correctly kept, the entries being from information coming from the employees who delivered the horses to the defendant; but it also appeared that the horse books were lost, except those covering a part of the years 1883, 1884 and 1885. The defendant objected and excepted to the admission in evidence of one of the ledgers, and now urges that there was no proper or competent proof of the items of the account resulting in the amount with which the-referee has charged him. We do not deem it necessary to pass-upon the question of evidence discussed by counsel, for the reason that the defendant is precluded from raising it by the stipulation above referred to. By it, the plaintiff was permitted “ to give such proof as he may be advised as to any item of horse hire contained in his ledger and complaint, for which the horse book and book of original entry is lost,” and upon proof of loss of those books “„after he has given evidence as to as many items as he may elect, riot less than for one week,” it was to be admitted that the plaintiff, if he so stated, “ can give the same evidence as to all the items-in his bill of particulars which are there stated as having arisen within the period of time for which his horse books or books of' original entry cannot be found * * * and to prove by such evidence as he has one ór more items arising within the time when he has the horse book or book of original entry,” etc., and the defendant also stipulated “ not to insist upon any further proof of such items, but the evidence will stand the same as if those items-had been proved item by item, with the same force and effect that it stands as to items as to which he (the plaintiff) has exhausted proof.” The meaning of this stipulation is that the accuracy of the account should be tested by proof being made of the particular items charged for one week during the period covered by the lost, books, and of one or more items during the time for which the horse books were produced, and all other items in the ledger and bill of particulars were to stand as if they were sufficiently proven in the same way. The terms of this stipulation were substantially complied with, the plaintiff giving the required proof, and .its effect cannot be avoided by the argument now made that such proof was to be given de nova and at a date subsequent to that of the stipulation. Some of the evidence is contained in the testimony of witnesses given on the hearing of the action against the-railroad company, but it was made part of the record before the-referee in this cause and is within the spirit of the agreement between the parties. Without regard, therefore, to the abstract rule of evidence, which otherwise might require consideration, we think, for the purposes of this action, the plaintiff furnished all the-proof necessary to make out his prima facie case.

The referee found that the defense of payment was not established, and, on the whole evidence, we cannot disturb that finding. There is no proof of payment of any ascertained or fixed! balance of account; but the defendant insists that all the transactions between the plaintiff and himself were settled from time to time, and at short intervals; that bills were rendered weekly, all which were fully paid, and some seventy two receipt for various amounts were put in evidence by the defendant. One of them is dated in 1872, seventeen in 1878, two in 1881, eleven., in 1883, thirty-eight in 1884, and two in 1885. Some are for specific items, some generally on account The defendant states he had had receipts during other years, but they were lost. The-question of fact for the referee to determine in connection with, these receipts related not only to the mere payment of the sums; represented thereby, but he was called upon to infer therefrom the nature of the dealings between the parties. There was enough, in the testimony of Crow and of Frazee to authorize the conclusion that each of the items contained in these bills receipted, or reóeipts, formed part of and entered into the running account, and. that each was not a distinct matter settled and paid for at or about the date of such receipt •

The defendant claimed that all items prior in date to April 23, 1884, were barred by the statute of limitations, the action having been begun April 28, 1890. The referee held the statute did not apply. He found that the defendant made payments on account of the general bill within six years, and that such payments took the demand out of the operation of the statute. Lawrence v. Harrington, 122 N. Y., 415; 33 St. Rep., 717.

As the transactions subsequent to April, 1884, were held not. to be independent ones, settled at weekly or other short intervals, the payments must "have been on general account, and among the receipts produced by the defendant are some in which it is stated that they are on account.” The defendant, virtually admitted on August 6, 1884, he owed the plaintiff moneys for horses, and he promised to send some of it to the plaintiff (Ex. No. 1), and there is no pretence that what, was then owing was merely for one week or some short period. What was paid after April, 1884, was all credited in the running account. On the whole testimony, we are not inclined to differ with the referee as to his finding respecting payments made in such manner and under circumstances sufficient to take the claim out of the statute.

The judgment must be affirmed with costs.

O’Brien, J., concurs.

Van Brunt, P. J.

(dissenting,.—I cannot concur. There was no legal evidence as to any of the transactions in respect to which the books of original entry were lost, and, therefore, there was no proof of even one week .in that account. The rule laid down in the case of The Mayor, etc., v. Second Ave. R. R. Co., 102 N. Y., 572; 2 St. Rep., 526, shows what must appear in the character of proof to entitle books of account to be read. The evidence in this case falls entirely short in its compliance therewith even as to one week, and therefore such evidence should not hare been admitted.  