
    Walter E. Delabarre, Respondent, v. George S. McAlpin, as Executor, etc., of Sarah G. Mafew, Deceased, Appellant.
    
      Pleading—Statute of Limitations interposed as a defense to a cause of action based upon an account stated within the statutory time, some of the items of which were before and some after the date at which the statute would apply — proper form of answer — account stated by oral agreement.
    
    The complaint in an action contained two counts; the first was for the recovery of $2,120 for medical services rendered to the defendant's decedent between June 1, 1894, and March 19, 1901; the second was to recover the same amount on an account stated, and was evidently intended to relate to the same services._
    It was alleged that the account was stated between the plaintiff and the decedent on the 19th day of March, 1901, and' that it was for medical services • rendered by the plaintiff to her “between June, 1894, and March, 1901,” and that on the statement of the account said amount was found to be due to the plaintiff, and that she promised and agreed to pay the same. It was not alleged that the decedent’s assent to the account was in writing, or that her promise or agreement to pay the same was in writing.
    In his answer to the second cause of action, the defendant, “for a second, separate, further and as a partial defense,” alleged: “Y. That all charges for service alleged to have been rendered by plaintiff to defendant’s testatrix, Sarah G-. Nafew, prior to December 14, 1896, are barred by the Statute of Limitations.” The date mentioned therein, was seven years and six months prior to the commencement of the action, the extra year and six months being added on account of the decedent’s death.
    
      
      Held, that such defense to the second cause of action was insufficient in law on the face thereof;
    That as the account was alleged to have been stated within four years before the commencement of the action it was manifest that the defense of the Statute of Limitations was insufficient so far as the action on the account stated was concerned;
    That an action upon an account stated is a new cause of action distinct from the original liability, and is based upon a promise, express or implied, to pay a specific amount, the consideration for which promise is the original transaction between the parties;
    That, it not appearing that the decedent’s promise to pay the amount shown by the account stated was in writing, the defendant was not precluded from availing himself of the Statute of Limitations as a defense to those items mentioned in the account against which the Statute of Limitations had run at the time of the stating of the account;
    That the plea of the Statute of Limitations interposed by the defendant was not effective for this purpose, as it was interposed with reference to the cause of action as pleaded, whereas it should have been directed to those items against which it had run at the time the account was stated.
    
      Semble, that an account may be stated by oral agreement.
    Appeal by the defendant, George S. McAlpin, as executor, etc., of Sarah G. Nafew, deceased, from an interlocutory judgment of the Supreme 'Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of November, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the demurrer interposed by the plaintiff to the separate, further and partial defense set forth in the amended answer to the second cause- of action contained in the complaint.
    
      Percy L. Klock, for the appellant.
    
      Alexander Thain, for the respondent.
   Laughlim, J.:

The complaint contains two counts: The first is for the recovery of the sum of $2,120 for medical services rendered to the decedent between the 1st day of June, 1894, anjl the 19th day of March, 1901; the second is to recover the same amount on an account stated and evidently was intended to relate to the same services. . It is alleged that the account was stated between the plaintiff and the decedent on the 19th day of March, 1901, and that it was for medical services rendered by the plaintiff to her between June, 1894, and March, 1901,”. and that on the' statement of the account said ■ amount was fpund to be due to the plaintiff, and that she promised and agreed to .pay the same. It is not alleged that the decedent’s assent to the account was in writing, or that her' promise or agreement to pay the same was in Writing.' The defendant in his answer to the first cause of action denies the, material allegations thereof and interposes the Statute of Limitations' as a defense to the charges for services rendered prior to the 14thday of December, 1896, which date is seven years and six months.prior to'the commencement of the action. This, manifestly, is upon the theory that' the six years’ Statute of Limitations applies, there being an allowance of one year and six months on account of the decedent’s death. In' his answer to the second cause of action the defendant'puts in issue b-the material allegations of the complaint concerning the same, and “ for a second, separate, further and as a partial defense to the second cause of action, defendant further shows and alleges :

“ V. That all charges for service alleged to have been rendered-by plaintiff to defendant’s testatrix, Sarah Gr. Mafew, prior to December 14, 1896, are barred by the Statute of Limitations.” The plaintiff demurred, to that part of the answer pleading the Statute of Limitations as a second, separate, further and partial defense to the second cause- of action upon the ground that the ' same is insufficient in law upon the face thereof.

As "already observed, the second cause. of action is upon an account stated, and as the account is alleged to have been stated within four years of the commencement of the action it is manifest that nó Statute of Limitations has run against the same. T.he plea of the Statute of Limitations, if made with respect to the cause of' action as (shown by the account stated, is, therefore, clearly insufficient in law. It is well settled that an action upon an account stated is a new and distinct cause of action from the -original liability, based upon a promise, express or implied, tp pay a specific amount, and. the consideration therefor is the original transaction between the parties. (Schutz v. Morette, 146 N. Y. 137.). As to such cause of action it is clear, I think, that there are only two theories upon which the Statute of Limitations could' in' any event/ apply. The one is that it had run against the account stated front the time the same was stated, which, as has been seen, it had not done here; and the other is that at the time the account was stated, the statute had run against some or all of the items of the account, and in that event the defense would only be good in case the promise to pay was not in writing. (Code Civ. Proc. § 395.) As has been seen, the plaintiff does not show that the account was assented to in writing, or that the promise to pay the same was in writing, and the plaintiff may be able to show an account stated by paroi agreement or mere acquiescence on the part of the decedent, from which the law would imply a promise to pay. (Lockwood, v. Thorne, 18 N. Y. 285; Samson v. Freedman, 102 id. 699; Jugla v. Troullet, 120 id. 21; Hall v. New York Brick & Paving Co., 95 App. Div. 371.) It is manifest, therefore, that if the Statute of Limitations be a defense to any or all of the items embraced in the account stated the defendant should be at liberty to plead the statute and thus be prepared to avail himself of that defense in case. the plaintiff establishes his account stated without establishing a promise on the part of the decedent in writing to pay the same. While it is true that the action upon an account stated is a new and independent cause of action, it does not follow that the defendant is debarred from availing himself of the Statute of Limitations as a defense to some or all of the items that entered into the account. It is to be borne in mind that there is no plea of an adjustment or settlement of differences between the parties which might afford a good consideration for the payment of an outlawed claim. The items of the account and the balance shown may have been correct and the decedent may have assented thereto verbally or have silently acquiesced therein, and by the plea of the Statute of Limitations her executor is not questioning the correctness of the account or the correctness of the balance shown thereby. It appearing on the face of the complaint that the items of the account extended over a period of more than seven years prior to the time the account was stated and it not necessarily appearing that it was an open mutual running account, against wh-icli the Statute of Limitations would not run until the date .of the last item, it is evident, I think, that the pléa of the Statute of Limitations might be interposed if directed to those items against which it had run at the .time the account was stated. This would be entirely consistent with the canse of action as alleged in the. complaint for- the correctness of the account would not be thereby necessarily questioned. • If the account was stated' as alleged, the statement of it may have shown items then outlawed and as to such items 'surely the -law will hot imply a promise to pay that will constitute a waiver of the Statute of Limitations which section 395 of the Code of Civil Procedure provides in effect may only be waived in writing. I am of opinion that the Statute of Limitations if thus pleaded would be a good defense as to the items which were outlawed 'at the time the account was stated, and that the balance of the account could be reduced- by the amount •of those items, precisely in the same manner as if,the defendant liad attacked the correctness óf the account, which latter course is clearly authorized. (Bucklin v. Chapin, 1 Lans. 443; Young v. Hill, 67 N. Y. 162; Jones v. Minis, 18 Hun, 452; Chace v.Trafford, 116 Mass. 529; Boynton v. Moulton, 159 id. 248; Wald v. Arnold, 168 id. 134; Ballard v. Beveridge, 171 N. Y. 194, 201; Bergen v. Hitchings, 22 App. Div. 395 ; Jorgensen v. Kingsley, 60 Neb. 44; 82 N. W. Rep. 104.) This plea' of the Statute of Limitations apparently was not interposed upon that theory, although it is now sought to be sustained thereon. I; am of opfinion that it is insufficient. Manifestly it has been interposed -upon the'theory-either that the plaintiff will fail- to show an account stated -—- in which -event the plaintiff cannot succeed on that 'cause of action —or upon the theory, that the account stated did not bar the running of the statute upon the items involved therein, which is erroneous. It -is interposed with reference to the cause -of action as pleaded- and should have been directed specifically to those items'in valved, in the account which were charges for service's rendered moré than six years prior to the statement of the-account..

It follows, therefore,, that the interlocutory judgment-should be affirmed, with costs, but with leave to the appellant-to amend upon payment of the costs of the appeal and of the demurrer.

Yait Betott, P. j., Iug-baham and McLAUGHLih, J7L, concurred; Pattebsóh, J.,- concurred in result.

Interlocutory judgment affirmed, with-costsi, with leave to appellant to .amend on-payment;of costs in-this court and in the court ■below;.- - .  