
    Henry L. Herbert, Appellant, v. Maurice R. Hellbut, Respondent.
    First Department,
    May 31, 1907.
    Pleading — copy of account stated denied..
    Where a defendant merely denies the plaintiff's allegation that a dispute as to a balance due from the defendant to plaintiff arose and the account of each party was then and .there stated, whereupon it was agreed that a- certain amount was due and owing plaintiff from defendant which he agreed to pay, he is not entitled to a certified copy of the account. Under such answer the accounts are the mere data or-evidence upon which the parties reached the'settlement and do not constitute the agreement itself. Gonira, where the pleadings are so framed as to put in issue the correctness of the accounts which were relied upon in arriving at the settlement.. .
    Appeal by- the plaintiff, Henry L. Herbert, frqm an order of the Supreme Court, made .at the New York Special Term and entered . in the office'of the clerk of the county of New York on the 8th • . day of April,. 1907. .
    
      JO. JE. Warren, for the appellant.
    
      Glenn -JMJ. Congdon, for the respondent.
   Scott, J.

The plaintiff appeals from a.n order precluding him.from giving evidence of an accouht alluded to in paragraph 5 of his complaint, unless within five days lie serve a verified copy of said account on the defendant’s .attorneys. • ■

■ The plaintiff is a'dealer in coal, and the defendant, at the times stated in, the complaint, sold coal for him under a contract. '

. - ’ The 5th paragraph of the complaint reads as follows: “ That on or about Angn.st 10th, 1904, the-plaintiff and defendant had a settlement of'all and every of 'their transactions arising out of -their business' relations, as well as under said agreement Exhibit A, np to May 1st, 1904, and a dispute then and there arose as to. the balance then due from said.defendant to this plaintiff, and the accounts of each of said-parties were then and there stated, whereby in settlement of said account it was then and,there agreed by .and between this plaintiff and defendant that there was due and owing from said defendant to this plaintiff on that day the sum of $4,250, which said defendant then and there promised and agreed to pay.”

The answer denies all the allegations of this paragraph. The ' question when a party claiming under an account stated may be compelled to furnish a copy of the account alleged to have been stated is not always clear. In Cunard v. Francklyn (49 Hun, 233) the allegation was that there had been transactions between the parties ; that defendant from time to time rendered plaintiff stateinents' of accounts; “that in or about the months of June and July, * * * the plaintiff and defendant, upon a full consideration and discussion in respect to all such" matters, and of the transactions an'd accounts between them, all 'of which the plaintiff acquiesced in, settled and adjusted their accounts, and it was thereupon understood and agreed . between them that the defendant should be considered as indebted to the plaintiff ” in a certain sum.

It was held that this allegation did not set forth such an account • as was contemplated by section 531 of the Code of Civil Procedure, the court saying, “ it is true that accounts are alleged to have been considered and discussed in arriving at the adjustment, but these were the data or evidence upon which the parties reachéd their agreement, and cannot be said to constitute the agreement itself.” '

This appears to be the reasonable rule where reliance is had solely upon the agreement of indebtedness arising from the statement and settlement of accounts, and the promise to pay the amount so ascertained, for in such a case the'party alleging the promise must succeed by proving’it, and cannot fall back upon proof of the. items going to make up the account. (Johnson v. Tyng, 1 App. Div. 610.) . Especially is this so when the defendant contents himself with denying the settlement and the promise, without undertaking to impeach the accounts with reference to.which the settlement was arrived at. As was said in Wells v. Van Aken (39 Hun, 315): “ It may well be that in general a.bill of particulars will be unnecessary in an action on an account settled and stated. But whether necessary or not will depend on the issue the party'may desire to raise by his pleading. If he intend to rest on a simple denial of the fact charged. that the accounts had been examined and a balance struck, a bill of items of the account would be unnecessary.”

The' pleadings in the present case fall within the rule established by the foregoing authorities. A different rule prevails .where the account stated appears to be itself composed of. items, or'where the pleadings are so framed as to put in issue the correctness of the accounts which were considered and relied upon in arriving at "the sum agreed "to be due. (Keyes v. Flint Co., 69 App. Div. 142.)

" The order should be-reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, Laughlin, Clarke and Lambert, JJ., concurred.

Order, reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  