
    Hutchinson vs. The Market Bank of Troy.
    Where a judge was requested to charge the jury that entries made by witnesses, in the books of a bank of what they swore they did, at the time, were evidence of the facts, and entitled to 'the same credit as their evidence, although the witnesses making the entries did not recollect them; and that such entries were more reliable than the recollection of the plaintiff, after a lapse of nearly six years; Reid that such request was properly refused; and that it was correctly left for the jury to say, upon all the evidence, which was entitled to the greater weight.
    The plaintiff claimed to have left a draft with a bank for collection, on the 24th of July, 1856. His bank book was written up as early as August or September, 1856, and balances were struck and the vouchers delivered up to him repeatedly, afterwards, until 1859, when he drew out of the bank the balance remaining to his credit. In September, 1856, he knew, or with reasonable attention might have known, that the draft was not credited to him on the books of the bank; yet he omitted to bring the matter to the ' notice of the bank until the spring of 1862. Reid that this was a stated account, not objected to within a reasonable time; so clearly so, that it was not, under the evidence, a question proper for the consideration of the jury, whether the delay was sufficientlj^accounted for.
    
      
      Held, also, that the judge properly refused to charge that under the circumstances the plaintiff was absolutely and conclusively bound by the stated account,' and could not recover of the bank the amount of the draft. The true rule in such cases is that the stated account is conclusive upon the parties, unless the plaintiff is able to impeach it by showing affirmatively fraud or mistake.
    A stated account never gives to a party claiming under it the benefit of an absolute estoppel. In practical effect it gives to him little more than these two advantages: 1. When the question arises upon the pleadings) the court has, in some instances, in granting permission to amend or reply, some equitable coatrol over the power of opening accounts; 2. When the question arises upon the trial, the party impeaching the account has the affirmative of the issue, and the burthen of proof, Per Hogeboom, J.
    Where, in an action to recover a sum claimed by the plaintiff to be due to him, on the ground of an omitted credit, the defendant simply interposes the defenses of a general denial, and payment, and under the issues thus framed, the parties have investigated the whole case, on the trial, without objection, the defendant cannot afterwards be allowed to say it is not a case, upon the pleadings, for examining the question of fraud or mistake.
    APPEAL from a judgment ordered at the circuit, and from an order refusing to grant a new trial.
    The action was commenced in July, 1862; The complaint alleges that the plaintiff was the owner of a draft, dated July 7th, 1856, for $884, drawn by Samuel S. Whallon, canal commissioner, on the auditor of the canal department; that on or about the 24th of July, 1856, the plaintiff left. this draft with the defendant for collection; that the defendant collected the draft and has never paid the same to the plaintiff. The answer, 1st. Denies the complaint; 2d. Sets up payment of the draft.
    The action was tried at the Rensselaer circuit, November 22, 1865, by Justice Miller and a jury, and a verdict rendered in favor of the plaintiff, for the amount of the draft and interest, upon which judgment was entered for $1702.75 damages and costs. A motion was made at the circuit to set aside the verdict and for a new trial, which was denied. From that order, and the judgment, the defendant appealed.
    The plaintiff is, or formerly was, a blacksmith, residing at Troy, and the defendant a hanking corporation located at the same place. In 1856 the plaintiff was building bridges for the state, on the Erie and Oswego canals; was paid by canal commissioners’ drafts on the auditor of the canal department. The draft set out in the complaint, dated Mayville, July 7, 1856, was one of these drafts. The plaintiff received another draft from Henry Fitzhugh, canal'commissioner, dated July 1, 1856, for $853.47. They are so connected that the facts touching both require examination.
    The plaintiff claims and swears that these two drafts were left with the defendant for collection, one on the 23d, the other on the 24th of July, 1856, and that he never has been paid the draft in suit. The defendant claims that neither of the drafts was left for collection, but that the draft in suit was received by it as cash and the money paid to the plaintiff on it some days previous to the 23d and 24th of July; the other deposited by him as cash on the 24th of July, and he credited by the defendant with the amount on that day.
    The plaintiff’s case rested mainly upon his own testimony, fortified to some extent by that of Lynd, who had some interest in the draft. In 1856 the plaintiff had an account with the defendant, which was finally closed August 24th, 1859. ■ At that time he kept no other bank account, was in the habit of negotiating these drafts with the defendant, and did not negotiate them elsewhere in Troy. The defendant’s corresponding bank in Albany was the Bank of the Capitol. It had no other agent in Albany. The defendant sent to Albany, by express messenger, usually a couple of days before advised of the payment of drafts. The draft for $853.47 was received by the defendant July 24, 1856. The plaintiff swears it was left for collection. This is denied, and made to some extent improbable by its being charged and credited on the exchange books of the two banks, and not on their ticklers, where it would have been placed if received for collection. The amount is also credited by the defendant to the plaintiff on the same day. For a statement of books kept by the defendant, the defendant introduced the evidence of Watson, its teller in 1856. They were kept in the ordinary wav. In its dealings with the Bank of the Capitol amounts only were entered, without specifying for what; and the Bank of the Capitol kept its account with the defendant in the same way. In such dealings collections were entered upon the tickler, cash items upon the exchange book.
    On July 15, 1856, the Bank of the Capitol was charged by the defendant, on its exchange book, with an item, among others, of $884. July 16th the Bank of the Capitol received this remittance from the defendant, and on July 18 th sent the defendant a remittance of twelve items, one of which was $884. This remittance was received and credited by the defendant on the same day, and on July 24th, in a remittance by the defendant to the Bank of the Capitol of $1789.85, made up of three items, the amount of $884 again occurs ; another of the items being $853.47, (the other draft,) and another item, $52.38. This remittance was received and credited by the Bank of the Capitol on July 25th. Both Banks treated the item $884 as cash, by entering it on their exchange books. It was sent and returned as a cash item. Neither of the drafts appear on the defendant’s tickler, where they should have been entered if received for collection. The $853.47, it is admitted, was credited the plaintiff on the day named by the defendant, as cash. The plaintiff swears that this draft was not delivered to the defendant before July 23d. The plaintiff admits that this draft was first received ; and further, he says : “ It was spoken of at the time I left it, that it would not probably be paid, in consequence of the receipt not being signed by Mr. Lynd.” There is a memorandum on the draft of $884 as follows: “ Mr. Hutchinson’s assignee must sign the receipt, and indorse the draft, before it can be paid. Bdw. James, acting auditor.”
    Watson, the defendant’s teller, testified : “ Have seen the original draft; saw that my indorsement had been erased and indorsed again after the name of Lynd. Mr. G-ilbert was cashier of the Bank of the Capitol; the draft had been indorsed by him and his indorsement erased and repeated.” Mr. Lynd swears : “ Recollect I saw these two drafts there at the time ; recollect better now than on former examination when I brought him the $853.47 draft he said that he had not yet received the money on the $884 draft, and the Bank wanted the draft and me to give my name upon it ; went to the Bank and gave my name on it.”
    Mr. Lynd testified that the plaintiff told him he had not yet received the money. This witness says : “ The $884 draft had not, so far as I know, been to Albany when I was asked to sign it; don’t know that it had not.” He says that it could not be he received the draft as early as 15 th July. The witness testifies : “Am not sure I saw him (the plaintiff) do any thing with the $884 draft. He wanted me to go to the bank and indorse it.”
    The plaintiff had a bank book ; received it some time in September, 1856 ; delivered him with checks and vouchers ; his account was written up from time to time, and book delivered with vouchers ; he closed his account August 24th, 1859, and drew balance; he examined- his bank book when he got it, in August or September, and noticed he was not credited with the $884 draft. He testified : “I at that time remembered the history of the $884 draft.” The plaintiff made no claim until the spring of 1862, and then, as the defendant claims, he made none. Tappan swears : “He stated that he had got into a fog in his matters with Lynd, and wanted to know who got the money on those drafts.” The plaintiff himself testified: “ Lynd and I got into a dispute about who should draw the money on those drafts, * * *
    my impression is that nearly four years elapsed before I satisfied myself about the draft. I went to the canal department, and found when these drafts went through. I immediately communicated with the bank about it; spoke to Mr. Tappan.” He admits, afterwards, in his cross-examination, that his interview with Mr. Tappan might have been in the spring of 1862, and Tappan swears it was. He knew the defendant had the draft, and noticed he was not credited with it on the bank book in August or September, 1856, and then, and until the spring of 1862, acted in accordance with the truth that he had been paid the money on the draft. He kept his account with the defendant for over three years after this, and finally closed it on August 24th, 1859. His bank book was written up and delivered him, with vouchers, from time to time, and when his account was closed and he drew his balance. He kept a book-keeper and books only up to June, 1856. The plaintiff kept memoranda on envelopes ; they were burned in the fire of 1862. He testified as to the time of receiving these drafts, from the post marks on the envelopes. He swears : •“ I had a memorandum of the disposition made of these two drafts ® * * ® had no memoran-
    dum of the disposition of these drafts.” He apprehended his account was short on first getting his bank book ; he did not recollect the draft had been deposited with the defendant; remembered its history when Barker, the engineer, came; did not know that he had delivered the draft.
    The.parties having rested, and the testimony closed, the court charged the jury, and at the conclusion of its charge was requested by the defendant’s counsel to further charge that if they found that the plaintiff’s bank book was written up from time to time, so as to show the state of the account between him and the defendant, as claimed by the defendant, and was delivered to him with vouchers, it amounted to a stated account, by which the plaintiff was bound, unless he objected to it within a reasonable time ; and that the plaintiff having made no claim upon-the defendant until the spring of 1862, he did not object within a reasonable time, and could not, therefore, for that reason, recover in this action. The court refused so to charge, but did charge that the delay in objecting to an account thus made out and stated was to be considered by the jury, in weighing the testimony. The defendant’s counsel excepted to the refusal to charge, and to the charge as made.
    
      The defendant’s counsel further requested the court to charge the jury that a stated account furnished a merchant or business man by a bank with which he keeps an account must be objected to within, a reasonable time, and cannot after that be brought in question, except on the ground of fraud or mistake, which is not this action. The court refused so to charge, but did charge as above ; and further, that it was for the jury to determine, upon the evidence, whether the plaintiff unreasonably delayed to assert any error, if there be any error, in the account with the defendant. The defendant’s counsel excepted.
    The defendant’s counsel further requested the court to charge the jury that the closing of the plaintiff’s account, finally, with the defendant, on the 24th of August, 1859, and drawing his check for the exact balance at that time, having his bank book written up and balanced and delivered to him with vouchers, was a final settlement, and was conclusive upon the parties, unless for fraud or mistake, which is not this action. The court refused so to charge, but did charge that these facts were to be considered by the jury in weighing the testimony, as before stated; and the defendant’s counsel excepted.
    The defendant’s counsel further requested the court to charge the jury that the entries proved to have been made by the witnesses Watson and Tappan in the books of the defendant, of what they swear they did at the time, were evidence of the fact or facts, and entitled to the same credit as their evidence, although the party making the entries does not now recollect them ; and that such entries are more reliable than the recollection of the plaintiff after the lapse of nearly six years. The court refused so to charge, but did charge that such entries were evidence, and were entitled to great weight, but that it was for the jury to say, upon all the evidence, whether they were entitled to more weight than the testimony on the part of the plaintiff The defendant’s counsel excepted.
    
      
      G. F. Tabor, for the appellant.
    I. The plaintiff’s case rests entirely upon his own testimony. Our first point is, that it is not sufficient to sustain the verdict, and that the motion made at the circuit to set- it aside should have been granted. (After reviewing the testimony.) The defendant, by the entries in its books, and in those of the Albany Bank, by the facts showing that this draft was sent back to be indorsed, and entries made such as this transaction called for, by the identity of amount, the settlement of the defendant’s cash, and other proofs, makes a strong case; in fact, proved every thing possible under the circumstances ; and to allow of a recovery against a bank, in such a case, and against such proofs, upon the vague recollection, or pretended recollection, of a party dealing with it, would be dangerous in the extreme. A bank could not, with any safety, pay a draft or a check upon another bank, without taking a voucher for the money.
    The case, on the part of the plaintiff, rests upon his testimony, a new species of evidence, until recently excluded as unreliable and dangerous. Now, that it is admitted, it is the duty of courts to scrutinize it with care. This cannot always be expected of the jury.
    The plaintiff was called upon, after his continued dealings, frequent settlements, and long delay, without making any claim, to prove his case by substantial, reliable evidence. He has not done it—his testimony will not bear examination. He undertakes, after six years, to remember what he could not remember before, without books or papers, or any thing to aid him, or refresh his memory. The proofs show that he was loose and erratic, without system, or business habits, and the verdict is clearly against the weight of evidence. In such case, this court say, in Powell v. Jones, (42 Barb. 28,) a new trial will be granted.
    Where the evidence on behalf of the successful party does not establish the facts constituting his cause of action, or defense, beyond a reasonable doubt, the verdict can not be sustained. (Sheldon v. Hudson River R. R. Co., 29 Barb. 226.) To justify a verdict, the law requires not positive proof, but such proof as will leave no reasonable doubt of the existence of the fact upon which it must rest. {Id. 229.)
    Findings of fact plainly against the weight of evidence should be set aside on review. (Mathews v. Poultney, 33 Barb. 127. Smith v. Tiffany, 36 id. 23.) The case is not one of conflicting testimony where the evidence is nearly balanced, or one of doubt, as to the preponderance ; but the verdict is clearly against the weight of evidence, and upon well established principles the defendant is entitled to a new trial.
    II. The court erred in refusing to charge the jury as requested by the first, second and third requests. As to the first, the court erred in refusing to charge that the plaintiff was bound by a stated account, unless he objected to it within a reasonable time. His refusal to charge as requested, with instructions to the jury that it was to be considered by them, was equivalent to charging that a party is not bound by a stated account, if he does not object to it within a reasonable time, but that it is matter of discretion for the jury.
    The court erred in refusing to charge the same thing contained in the second and third requests, and also in refusing to charge that it was necessary in the cases specified in these requests, in order that the plaintiff should not be bound thereby to prove fraud or mistake. (Lockwood v. Thorne, 1 Kern. 170. S. C. 18 N. Y. Rep. 285. 30 id. 202.)
    The court erred in refusing to charge according to the fourth request, in respect to both of its propositions.
    If the requests to charge by the defendant were correct, they should have been assented to by the court. To refuse to charge a proposition where the party is entitled to it, is not cured by further instructions to the jury from the court, should they be held equivalent to what was requested. Such a course is almost certain to prejudice the case, and to mislead the jury.
    The charge here will be found incorrect, in both what is charged and refused.
    
      
      W. A. Beach, for the respondent.
    I. It is questionable, whether the defendant is formally in position to ask a review of the facts by the appellate court. He has no order from which to appeal. The case states that he moved on the minutes for a new trial—that his motion was denied, and he excepted. He appeals from that ruling as an order. The practice is exceptional.
    II. The issues of fact were submitted to the jury upon conflicting testimony, of which, it may, at least, be said that there was no decisive preponderance in favor of the defense. The case is therefore one of those, where the .verdict is conclusive. Upon a former trial, a jury had disagreed. The verdict obtained by the plaintiff was upon a full and deliberate presentation, the parties being aided by the developments and arguments upon the first trial. To justify its reversal upon the proofs, it must appear to be clearly and inexcusably against the weight of evidence. Certainly, this cannot be pretended. It will be seen, I think, that the balance of proof was with the plaintiff. At any rate, it is indisputable that his case was sustained by the positive and unimpeached■ testimony of himself, and another, which was answered only by inconclusive inferences from the books of the defendant. If ,it may not be said, that an interference with the verdict, under such circumstances, would be in disregard of evidence, it may be said that it would be a departure from the settled doctrine and uniform practice of this court.
    III. The verdict is in decided conformity with the evidence. 1. The ownership in the plaintiff, of the draft, its deposit with the defendant, by the plaintiff, July 24th, 1856, its collection by the defendant, are unquestioned facts. It is undenied, that it was not credited to the plaintiff, on the books of the bank. It is not pretended that it was passed to the defendant, in liquidation of any debt of the plaintiff, or any special account. The sole question is, did the bank pay the plaintiff, over its counter, the amount of the draft,' when it was received ? The defendant claims that it did so. The plaintiff avers that it was delivered, and received for collection,' denying that the defendant has accounted for the avails. 2. The plaintiff swears, positively and unequivocally, that he passed the draft to the defendant on the 23d or 24th July, 1856, for collection, and that he has not received any credit or payment on account of it. 3. John A. Lynd, who was interested in the' draft, hy way of security for advances made the plaintiff, swears that on the 23d July, 1856, the plaintiff extinguished his interest in this and other drafts; that on the 24th July he went to the defendant’s bank to indorse the $884 draft, and did so; that he received no money from the defendant upon it, nor did the plaintiff, in his. presence. The plaintiff was uncertain, whether this draft was delivered to the. defendant on the 23d or 24fch July. The defendant’s exchange book shows an item of $884, both on the 15th and 24th July. Lynd swears that he had a settlement with the plaintiff on the 22d July, and that this draft, with another, was received the next day. His recollection as to that, is confirmed by the check given him by the plaintiff. It is certain, therefore, that the entry on the defendant’s books of July 15th, had no connection with the draft in question. It is probable that the entry under date, of July 24th, represents it, confirming the first impression of the plaintiff, that both the drafts of $853.47, and $884, were delivered to the defendant on the morning of the 24th .July. 4. The plaintiff swears, and it is undisputed, that on the 23d July, he requested Watson, the defendant’s teller, to furnish him a bank book, embracing all his account. That he then informed the teller that he desired all Ms drafts to appear. The plaintiff then gave a balance check ante-dated' to June 23d, a date overreaching all the drafts negotiated, with the defendant. It is further undisputed, that such bank hook was supplied, commencing June 27th, 1856. And that under date July 24th, 1856, the draft of $853.47 is credited, no credit appearing for the one of $884. It is certain that both these drafts were at the bank on the morning of the 24th July. The plaintiff and Lynd so testify, and there is no contradiction. How came these drafts, thus associated and connected on the plaintiff’s exchange book, separated ? The defendant answers that it paid the money on the one to the plaintiff, at the time. This is contradicted both by the plaintiff and Lynd. It is contradicted, also, by the known custom of all banking institutions, with their regular customers. Drafts deposited, for which money is paid on the instant, are always paid upon the customer’s check, and both draft and check entered to his account. Especially would this be so between these parties, the defendant knowing that the plaintiff desired all his drafts entered upon his bank book, and, indeed, that it was procured for that purpose. 5. In answer to this proof, the defendant produces Mr. Watson, its teller, by whom the business was transacted, on its part, who swears that he does not recollect of paying the $884 draft to the plaintiff or Lynd; that there is no entry on the book which shows that he paid the money on the draft; and that he can not swear that he did pay it over the counter to the plaintiff, or anybody else. The remainder of the defendant’s proof is derived from its books. It is circumstantial and argumentative. The books do not show, by direct entry, or positive deduction, what disposition was made of the $884 draft. It is said that its appearance upon the exchange book indicates that it was regarded as a cash item, and that the proven fact of the correct daily balancing of the cash account necessitates the same conclusion. If the conclusion be conceded, it by no means answers the direct and positive proof of mistake furnished by the testimony of the plaintiff and Lynd, supported by the circumstances before considered, especially as the evidence of the defendant’s teller shows that the error claimed by the plaintiff might well ' exist, consistently with the treatment by the defendant of the draft, as a cash item. In the first place, whatever may be the probability, it is not certain that the item of $884 appearing on the exchange books, under date of July 24, 1856, consisted of the $884 draft. Mr. Watson swears that he cannot tell of what the item consisted ; that it might he cash for aught he knew. He says this with the hooks before him, and with knowledge of the defendant's course of business. If nothing more, this proves the unreliability of the books, and in connection with the other testimony of Mr. Watson, before quoted, shows further, that all inferences deduced from the books are uncertain and hazardous. Other testimony of Mr. Watson is significant. He says ■ he means by a cash item, one for which money was paid, or credit given. So that if, by mistake, this $884 draft was credited to the wrong account, treating it as a cash item would produce no confusion or irregularity in the accounts. And Mr. Watson also shows that if it was credited to some other person than the plaintiff, he could not detect it in settling his cash account. The whole argument from the books, and from the accurate balancing of the cash, is answered by the single suggestion, that the draft was erroneously credited to some other account than the plaintiff’s. It became, therefore, important for the defendant to show, in aid of its argument from the books, that this credit was not improperly applied. This was entirely practicable. Ho proof of' the kind was given. The books produced did not elucidate the question. It was not even shown that this draft was not credited to Lynd. Such an error might readily occur. He was known assignee of the paper ; his name was upon it; he was present when it passed to the defendant; and Mr. Tappan, defendant’s cashier, when applied to by the plaintiff concerning the error, claimed that this draft belonged to Lynd. For aught that appears, it may stand credited to Mr.. Lynd, and if so, or to any other party, every argument of the defendant is fully answered. This view also meets the argument, vigorously pressed upon the jury, that a verdict for the plaintiff was a substantial conviction of Mr. Watson (the teller) for felonious embezzlement of the amount of the draft. Obviously, no such consequence follows. An innocent mistake, assumed probable in itself, reconciles all the evidence. But if this judgment conveys imputation upon any officer of the defendant, it is sustained hy evidence too credible and irrefragible to he disturbed for that reason; and an argument of this character, quite illogical in itself, is decisively disposed of hy the consideration that the success of the defendant would unavoidably impute perjury to the plaintiff, and possibly to Mr. Lynd also,
    IV. The remaining question arises upon the charge of the judge, and refusal to charge, presenting, for consideration, the doctrine of stated and settled accounts.
    It appeared that the plaintiff first received his bank hook from the defendant in August, or September, 1856, although the entries on it commenced in June preceding, at which time he closed his account and drew his balance. And that the plaintiff’s first application to the defendant on account of this draft, was some four years aft.erward, or, possibly, in the spring of 1862. In answer, it was shown that the plaintiff was not familiar with book keeping, and not in the habit of keeping books, and that he kept a book keeper, and books only to June, 1856. That he was a blacksmith by trader but in 1856 was contractor with the state, for the erection of iron bridges over the Erie and Oswego canals, for which he was paid by drafts, of the character in question. That he received these drafts every month of the year, to the amount, from January to June, 1856, of $30,000. The balance to his credit on the books of the bank, in July, 1856, was $24,281.35, and in August, $5049.17. Under this state of facts, the defendant contended that the account between the parties was so stated, ■ and settled, as to conclude the plaintiff from all allegation of error. On the contrary, the plaintiff insisted that the proof was abundant to carry the question of unreasonable delay in asserting the mistake to the jury. The defendant’s first request to charge, required the court to say as matter of law to the jury, “ that the plaintiff, having made no claim upon the defendant, until the spring of 1862, he did not object within a reasonable time, and cannot, for this reason, recover in this action.” This the court declined, leaving the question to the jury. Undoubtedly this was a correct disposition of the power, unless the evidence was so decisive, as to justify the court in directing a verdict for the defendant. That part of the first request, preceding the above extract, was entirely unexceptionable, but to sustain an exception, it must be so in all its parts. The court was not called upon to qualify the proposition, by distinguishing the good from the bad, although it did so. (Doughty v. Hope, 1 N. Y. Rep. 79.) The defendant’s second request, claimed a ruling to the effect that this action was not so framed that the plaintiff could recover, although he proved a mistake, and reasonable diligence to obtain its correction. The proposition, that a stated account must be objected to in a reasonable time, and could not be questioned but for fraud, or error, was entirely accurate ,* but the defendant asked the court to rule that this action did not present the question of an account stated. The complaint alleges that the plaintiff deposited the draft in question, with the defendant for collection ; that the defendant collected it, and never paid the avails to the plaintiff, but converted them to its own use. The answer avers payment, with a general denial. Clearly, the complaint was formally and substantially sufficient to authorize a recovery. It stated, precisely, the facts upon which the plaintiff’s claim rests upon the proof. It was not for him to allege a mistake. It is enough that he alleges, and proves, that the defendant, as his agent, collected for him money, for which it has neglected to account. An action within six years entitled him to judgment. It is the defendant who relies upon a stated account. The defense, argumentatively admitting the collection of the plaintiff’s money, and failure to account, attempts to bar' his action, because he did not claim his money seasonably. It might, with plausibility, have been objected, upon the trial, that the answer avers no such defense. Certainly, the defendant cannot object that it was considered. If otherwise, the issue of settled accounts, in all its aspects, was litigated without objection, until it came to the requests to charge. After the defendant found the issue to be against it, upon two trials, and full discussion, it attempts to escape it. Under these circumstances, if the pleadings were defective on either side, the court would conform them to the proofs. It will be presumed to have been done in support of the judgment, and if not, will be done on appeal. (Lounsbury v. Purdy, 18 N. Y. Rep. 515, 521. Bate v. Graham, 11 id. 237, 242.)
    The third request, is substantially the same as the second. It is submitted, that the single legal proposition debatable, is offered under the first request to charge. The only disputed point arises upon the submission of the question of delay to the jury. The court properly instructed them, that the facts showed an account stated ; that it was conclusive upon the plaintiff, unless objected to in a reasonable time; and that it was for them “ to determine upon the evidence, whether the plaintiff unreasonably delayed to assert any error, if there be any error, in the account with the defendant.”
    The direction given to the case by the learned judge at the circuit, follows strictly the path of the highest authority. (Lockwood v. Thorne, 11 N. Y. Rep. 170. S. C. 18 id. 285. McDougall v. Cooper, 31 id. 498.) The opinion of Justice Parker, in the authority first cited, is not as satisfactory as that of Justice Selden upon the second appeal in the same case. Justice Parker (p. 173) assumes that the record shows that there was no proof of fraud or mistake, as the case was then presented. And then holds that the question, “ whether, on a given state of facts, the transaqtion amounts to an account stated, is a question of law, and not of fact.” This may be conceded, without affecting this appeal. Here, decisive proof of mistake, or fraud, was given, and the only point of law raised was, whether or not that being shown, and long delay in asserting it appearing, it was proper to submit to the jury, upon explanatory testimony, the sufficiency of the excuse offered for the delay. Further on, in his opinion, (p. 174,) Justice Parker concedes that in the absence of express admission, the conclusiveness of the account depends upon the timeliness of objection to it. It is true, the verdict for the plaintiff, who claimed the error, was set aside, Justice Parker holding that the delay of nine months, and drawing a draft for the balance, was conclusive evidence, that the plaintiff agreed to the bill rendered, as a stated account. (Page 175.) But he then says, “ the transaction, then, being an account stated, is conclusive upon the parties, unless the plaintiff affirmatively shows fraud, or mistake. * * Here, no fraud or mistake was pretended.” On the new trial, the plaintiff was nonsuited. The circuit judge, misapprehending, I think, the opinion of Justice Parker, held the plaintiff concluded by the account, and granted a nonsuit. (18 N. Y. Rep. 287.) On appeal, the nonsuit was set aside, Justice Selden, with his usual force and precision, (p. 291,) announcing the sensible and just rule, that “ an account stated, or settled, is a mere admission that the account is correct. It is not an estoppel. The account is still open to impeachment, for mistakes, or errors,” &c. (p. 292.) He proceeds to demonstrate that the effect of an account stated, and settled, is a matter of evidence, and depends upon the attendant circumstances. Justice Pratt, referring to the decision on the first appeal, says, “ there is nothing in that decision, however, which would preclude the plaintiff from showing upon the second trial that they did, in fact, object within a reasonable time, or any legitimate cause for not objecting,” &c. (p. 290.) His opinion (pp. 288, 289) is equally explicit, in considering the whole question one of fact, to be settled upon consideration of all the circumstances.
    The case of McDougall v. Cooper, (supra,) is still more decisive. There a note was given on the settlement of accounts, and afterwards paid. The plaintiff sued as assignee in trust. The defendant was allowed to show mistakes without any explanation whatever, qualifying the effect of the settlement, and note given. The time that had intervened does not distinctly appear. The report does not show when the suit was commenced. The settlement was in May, 1848. Judge Denio’s dissenting opinion states, (p. 503,) that evidence was given of a paper executed in 1852. The suit was, therefore, four years after the settlement. The court says, (p. 499,) “ The principal issue of law was, admitting that there were errors, omissions or mistakes, on such accounting, was not the plaintiff barred and precluded from opening the account, and receiving any balance found due by reason of such omission, or mistake, by the duebill given, and the receipt thereon ?” And it sustained the finding of the referee, allowing the mistakes. This was in March, 1865. In the following year, (March, 1866,) in the Supreme Court, in the seventh district, the same doctrine was affirmed, although the court set aside the judgment upon the evidence. In that case the delay was nearly six years ; and yet the court held the account open to impeachment, without- hinting at the necessity of explaining the delay. (Towsley v. Denison, 45 Barb. 490.)
    It would seem clear that no error, prejudicial to the defendant, occurred upon the trial. It may be doubted if a party prosecuting within the statute of limitatious for money due, is, under any circumstances which do not amount to an express agreement, or an estoppel in pais, barred of his right by an account stated and settled, which is clearly shown to be erroneous. Such an estoppel rests upon no principle of law or equity. Why should the party to whom money is justly due be estopped by an error to which he has not understandingly agreed, and out of which no equity has arisen in favor of his adversary ? Suppose the error was seasonably discovered, or ought to have been, and the claimant was dilatory and negligent in obtaining its rectification, yet if he acts before he is bound by the statute,, what conceivable reason can be given why he should not assert the mistake P
    It may be said that parties rely upon closed accounts -— that they become stale and forgotten—and injustice may follow their opening. These are considerations relating exclusively to matters of evidence, and requiring more satisfactory proof of mistake. But the mistake being shown, nobody can maintain otherwise than as an arbitrary and senseless dictum, that it ought not to be rectified, because the wronged party has delayed the assertion of his right. The statute of limitations is the only bar, and that is arbitrary. Time does not sanctity error and wrong. The statute is peremptory; but short of that, there is no mere delay, unaccompanied by agreement or equitable estoppel, which bars any demand of this nature.'
    At all events, it does not when it is explained and shown, as in this case, not to have been an acquiescence in a known mistake, ripening into an implied agreement, but an excusable delay, founded in ignorance of the truth, and occupied in fruitless but ceaseless efforts to ascertain it. belonging to another. But it is an error to say that the statute raises any duty of the nature of a contract that the winner repay the money. When a judgment is recovered against him, that judgment may raise a contract obligation to pay it, but the loser’s simple right to sue does not. The winner unconscientiously retains the money won. He illegally came into the possession of it. The statute gives the loser the right of action for what is illegally retained by the winner. (See Bevins v. Reed, 2 Sandf. 436.) The law may imply a contract to pay a penalty or abide by a forfeiture, because the one or the other may be imposed as a condition of receiving or accepting the benefit of transactions which are illegal. This is not such a case. The loser’s right to sue is not for a penalty or forfeiture. The counter-claim is not based upon any implied contract of the winner to pay. It is the right to sue under the statute that is the subject of the counter-claim. Whatever may be the nature of the obligation of the winner to pay, it is very certain that the loser’s claim is simply a right to sue.
    
   Hogeboom, J.

The defendant’s counsel made four several requests to charge the jury, which it may seem better, to illustrate the case, first to consider.

The request to the court to charge absolutely that the entries by Watson and Tappan in the books of the bank were more reliable than the testimony of the plaintiff, after the lapse of six years, was properly refused, and it was properly left for the jury to say, upon all the evidence, which was entitled to the greater weight. This is so obviously the correct rule that it scarcely needs illustration. A contrary instruction, if positive and absolute, would probably have entitled the plaintiff, if defeated, to a new trial.

The second and third requests are faulty, I think, for containing the clause which is not this action.” If by that it was meant that it was not competent for the plaintiff to raise the question of fraud or mistake, because it had not been made as a distinct issue in the pleadings, the position was not well taken. The plaintiff could doubtless have framed a complaint alleging in terms that there had been an account stated between the parties, and setting forth circumstances of fraud or mistake therein as a ground for opening the same and reinvestigating the items thereof. And a denial of the allegations would have raised an issue upon which the parties might have gone to trial and introduced, probably, nearly the same evidence which they brought forward on this occasion. Or, the plaintiff might properly, I think, as he has done in this case, have framed his complaint to recover a specific sum—a single item—claimed to have been owing from the defendant to him ; leaving the defendant to set up a denial, or a payment, or an account stated, as the fact might be. A statement of the latter fact would be presumptively a bar, and would throw upon the plaintiff the necessity—if he wished simply to deny that there was an account stated—of raising that question, by an omission to reply, or by a reply containing a general denial of the answer ; or if he wished to open the account to re-examine the items on the ground of fraud or mistake, to amend his complaint or reply specially by permission of the court, setting up circumstances of fraud or mistake, in the nature of a surcharge or falsification, according to the practice of a court of equity. In this particular case, the claim being for an omitted credit, it would have been in the nature of a surcharge. But the defendant did not adopt this course, and interposed simply the defenses of a general denial and payment. Under issues thus framed, the parties have mutually and without objection gone into the whole evidence in the case. It is not, I think, for the defendant to complain that this has been done. Perhaps the plaintiff might have objected that if the defendant wished to rely upon an account stated, he should have interposed it as a specific defense. But the question does not arise. Both parties have investigated the whole case, on the trial, with the utmost freedom, and without a particle of objection, and they cannot now be allowed to say this is not a case, upon the pleadings, for examining the question of fraud or"mistake. If he intended by this language, “ which is not this case” to say it was not a case of fraud or mistake upon the evidence, that is that the evidence did 'not exhibit any circumstances tending to show mistake, I think the objection was not well founded in fact, so far as to prevent their submission to the jury, and therefore a compliance with it was properly refused.

I have more doubt about the first request, and whether the judge, at the circuit, ought not to have granted it. It consisted of two propositions : 1st. That if the plaintiff’s bank book was written up from time to time, so as to show the state of the account between the two parties, and delivered to him (the plaintiff) with vouchers, it amounted to a stated account by which he was bound, unless he objected to it within a reasonable time ; and, 2d. That the plaintiff having made no claim upon the defendant until the spring of 1862, he did not object within a reasonable time, and could not therefore, for that reason, recover in this action.

The plaintiff’s counsel, pronounces the first branch of this request“ entirely unobjectionable,” but attacks the latter as unsound. I regard the plaintiff as without any reasonable excuse for allowing the matter to be so long unquestioned. His bank book was written up as early as August or September, 1856, and balances struck, and the vouchers delivered up, repeatedly afterwards, until 1859, when he drew out of the bank the balance remaining to his credit. In September, 1856, he knew, or with reasonable attention might have known, and was bound to know, that the draft in question was not credited to him on the books of the bank. It is no sufficient apology for his remissness to say he was not learned, or was otherwise employed. He was bound, by all the rules which regulate commercial transactions, to give attention to this business, and if necessary, to obtain the services of a competent assistant for the purpose. If he was not persuaded of a fact of which on this trial he was so positive—that the paper had come into the possession of the defendant—that is another, question. That casts a doubt over his accuracy in the whole transaction. But even that is hut a lame apology for letting the matter lie till the spring of 1862, before he brought it to the notice of the bank. Upon all the principles applicable to transactions of this kind, this was, in my opinion, clearly a stated account, not objected to within a reasonable time ; so plainly so, that it was not, under the evidence, a question proper for the consideration of the jury whether the delay was sufficiently accounted for.

Differing on this point from the judge who presided at the trial, let us see whether the defendant has taken any available exceptions on this branch of the case. It has excepted to the charge of the judge that the delay in objecting to an account thus made out and stated, was to be considered by the jury in weighing the testimony. In this there was no error. It was to be considered, and very seriously considered ; so much so as to throw great discredit upon the plaintiff’s case. The charge, in this clause of it, was not equivalent to a submission of the question to the jury to determine whether the delay was so unreasonable as to forbid a recovery by the plaintiff. That, I think, would have been error, but not to say to thénij in effect, that the delay in objecting to the account detracted from the strength of the plaintiff’s case. In the refusal to comply with the second request, the judge laid down the rule more broadly, and, as it seems to me, erroneously, in saying “ it was for the jury to determine upon the evidence whether the plaintiff unreasonably delayed to assert any error in the account with the defendant.” But I find no specific exception limited to this clause of the charge, The case states, immediately after the last sentence, “and the defendant’s counsel then and there duly excepted.” But the previous sentence, to which that exception is applicable, contains not only the clause above quoted, but a refusal to charge, and a charge in both of which the judge was, in my opinion, correct. The exception must therefore fail, for being too comprehensive.

The first branch, and the latter part of the second branch, of the request, asked the judge to charge that under such circumstances, the plaintiff was bound by the stated account, (that is as I understand it) absolutely and conclusively bound, and could not recover. I think this was a more rigid penalty than the law imposed. The true rule is more nearly stated in the second and third requests, that the stated account becomes conclusive upon the parties unless impeached for fraud or mistake. In the language of the opinion in Lockwood v. Thorne, (11 N. Y. Rep. 175,) “ the transaction then being an account stated, is conclusive upon the parties, unless the plaintiff affirmatively shows fraud or mistake.” So in Judge Selden’s opinion in the same case, in 18 N. Y. Rep. 292 : “An account stated or settled is a mere admission that the account is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors.” “ But the parties are never precluded from giving evidence to im-' peach the account, unless the case is brought within the principles of an estoppel in pais, or of an obligatory agreement between the parties ; as, for instance, when upon a settlement mutual compromises are made.” (See further, Murray v. Toland, 3 John. Ch. 569 ; Wilde v. Jenkins, A Paige, 481; Philips v. Belden, 2 Edw. 1.)

The result is that a stated account never gives to a party claiming under it the benefit of an absolute estoppel, and in practical effect gives him little more than these two advantages : 1st. When the question arises upon the' pleadings, the court has, in some instances, in granting permission to amend or reply, some equitable control over the power of opening the accounts. 2d. When the question arises upon the trial the party impeaching the account has the affirmative of the issue, and the burthen, and sometimes an oppressive burthen, of proof. These are considerable advantages, but they come very far short of placing the adverse party under the bar of an absolute estoppel. On the whole, therefore, I think this request, for the reason just stated, was also properly refused.-

Nor do I think, whatever may be our opinion of the merits of the case, that we can consistently with the rules of law, grant a new trial upon the ground that the verdict is against the weight of evidence. 1st. The plaintiff—and to some extent he is corroborated by Lynd—swears explicitly that he delivered this di'aft to the defendant, and that he has never had from it either payment or credit. None of the officers of the bank swear explicitly that this is not so, and all were not examined upon this subject who might have been. The lapse of time, and the stated account, are strong circumstances against the plaintiff but we can scarcely say, under the positive- testimony of the plaintiff, that the bank has had the draft and has not accounted for it, and a failure to contradict it by testimony equally explicit, that the weight of proof is so clearly with the defendant as to require us to set aside the verdict.

2d. This draft is clearly enough traced into the possession of the defendant. The plaintiff swears to it, and the defendant does not deny it. It is highly probable, not to say absolutely certain, that it passed between the defendant’s bank and the Bank of the Capitol, at Albany. The respective theories in regard to it are, 1st, that of the plaintiff, that it was received by the defendant for' collection and never accounted for; and 2d, that of the defendant, that it was received as cash, and accounted for at the time. There certainly are some circumstances tending to show that the plaintiff is mistaken in supposing that it did not go into the hands of the bank till the 23d or 24th of July ; for an item of precisely that amount passed on the 15 th from Troy to Albany, in the exchanges between the Market Bank and the Bank of the Capitol, and it was entered in the exchange account and not on the tickler, indicating it to be a cash item. And to make «that more absolutely certain, it would have been more satisfactory if the defendant had given evidence to show that the item did not, after the 24th, again appear on its exchanges with the Bank of the Capitol. Indeed I think it somewhat remarkable that the case does not explicitly state, and that proof was not given, that no further or other account of this item appears on the books of the bank; or that the state of the account of Lynd, as well as of Hutchinson, and perhaps that of some other parties, was not examined at about that period of time—from the 15 th to the 25 th of July—for the purpose of ascertaining whether by possibility some mistake had not occurred, in regard to the disposition of this item, which would tend to promote justice, between these parties.

The theory of the defendant is that this draft may have been, though not sworn to that it actually was, treated as a cash item, and paid over the counter of the bank to the plaintiff, in cash, and not in any way entered or necessary to be entered on the books of the bank. And it would nob have been improper, or unnatural, so to have entered it. It was very likely to be so entered, as the plaintiff was an habitual dealer and customer at the bank, making frequent if not daily deposits and drawing frequent if not daily checks. I think there is no evidence to show that in any other instance the defendant paid any of the canal drafts to the plaintiff in that way. And the draft of $853.49 which, as the defendant says, was treated by the bank as a cash item, was nevertheless credited to the plaintiff on the books of the bank.

3d. There are undoubtedly some difficulties in sustaining the theory of the plaintiff, and some improbabilities in some of the circumstances testified to, and great lapse of time allowed to occur before an investigation is' demanded; but there are also counter difficulties and counter improbabilities in the theory of the defendant—- an absence of positive testimony—and a lack of that full examination and presentation of facts which, I think, the circumstances of the case called for.

The case has been once tried without reaching a verdict, and again tried with a result unfavorable to the defendant. I am not prepared to say that we ought to interfere to set that verdict aside. The case, in any aspect of it, is attended with doubts and uncertainties, and the plaintiff has this advantage in the clearly established facts of the case, that the draft belonging to him went into the defendant’s possession.

[Albany General Term,

March 4, 1867.

I think the verdict cannot be disturbed, and that the judgment must be affirmed.

Miller, J.

I think that no error of law was committed upon the trial of this case. And although not entirely satisfied with the verdict of the jury, I do not well see how, according to well settled rules of law, it can be disturbed. I therefore concur in the result of the foregoing opinion. •

Peckham, J. dissented.

Judgment affirmed.

Peckham, Miller and Hogedoom, Justices.]  