
    Emmet Stevens, as Executor of the Last Will and Testament of Levi Hill, Deceased, Respondent, v. William Barss, Appellant.
    
      Accord and satisfaction — account stated— when it can be opened— conclusion of a, referee — when it should not be disturbed on appeal.
    
    "When a settlement of accounts between two persons amounts to an accord and satisfaction, one of sucli persons cannot recover from the other items omitted from the account, without showing fraud or mutual mistake. It is otherwise when such settlement was a mere account stated.
    Before an account stated can he opened or corrected the proof should clearly show an error therein.
    
      Wliere the evidence is conflicting the conclusion of a referee, based thereupon, should not be disturbed by an appellate court.
    Appeal by tlie 'defendant, William Barss, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tlie office of tbe clerk of tbe county of Warren on tbe 6th day of August, 1892, upon tbe report of a referee.
    
      Charles P. Coyle and A. Armstrong, Jr., for the appellant.
    
      S. H. Bevins and Potter & Lillie, for tbe respondent.
   Putnam, J.:

Plaintiff’s intestate and defendant, who were co-partners, in January, 1889, bad an accounting, on which there appeared to be due from deceased to tbe defendant $1,125. Defendant agreed to take the sum of $1,000, and deceased gave bis notes therefor, which were afterwards paid.

Tbe plaintiff, claiming that there were errors and mistakes in tbe said accounting to tbe amount of $454.14, brought this action. Tbe issues in tbe action were referred, and tbe referee found in favor of tbe plaintiff.

We have entertained some doubt whether tbe transaction between tbe parties, at tbe time deceased gave tbe notes, did not amount to an accord and satisfaction. If so, plaintiff could not recover without showing fraud or mutual mistake. If tbe settlement between tbe parties was in fact an accord and satisfaction, no fraud or mutual mistake being shown upon tbe trial, tbe judgment cannot be sustained.

But, on carefully considering tbe evidence, we are of tbe opinion that tbe referee could properly find therefrom that The settlement was a mere accounting, and not an accord. Tbe witness Coyle seems to have been allowed by bptli parties to draw off the account between them, and bis statement of such account to have been acquiesced in by both parties. Tbe testimony does not show any real dispute or controversy. Something was said about interest, but it does not appear that defendant insisted that be bad a right to it. Tbe evidence was such that tbe learned referee could properly find the transaction an account stated. Such being the case, an item or items omitted from tbe account may be recovered by decedent’s executor. (Carpenter v. Kent, 101 N. Y. 591; Ract v. Duviard-Dime, 21 N. Y. St. Repr. 736-740.)

Of course, before a stated account could be opened or corrected the proof should clearly show the error or mistake.

Whether there was sufficient evidence produced on the trial to show such error or mistake was a question of fact for the referee. There was testimony given on the trial by plaintiff tending to show such mistake. The deceased swore positively to the error, and was to some extent corroborated by the book of account which he produced. The testimony of the deceased was in some regards contradicted by defendant’s witnesses.

On well-settled principles we cannot properly reverse the finding of the referee on the question of fact submitted to him. The evidence was conflicting; the referee saw the witnesses and heard them testify, and his conclusion should not be disturbed.

We have examined the case carefully and do not think that any of the exceptions taken by the defendant to rulings of the referee require discussion or call for a reversal of the judgment.

The judgment should be affirmed, with costs.

Matiiam, P. J., and Herrick, J., concurred

Judgment affirmed, with costs.  