
    Frank W. Robbins et al., Resp’ts, v. Charles Downey, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed November 16, 1891.)
    
    Account stated—When a question oe fact.
    The action was brought on an alleged account stated. Defendant denied that an account had ever been stated or balance found due from him, or that payment had been demanded. Held,, That the question as to whether an account had been stated was properly submitted to the jury as. a question of fact; that under these circumstances it was not a question of of law.
    Appeal from judgment entered upon a verdict for plaintiff.
    
      Phillips & Avery, for resp’ts ; Malcolm Campbell, for app’lt.
   Van Wyck, J.

This action is for a balance due on an account stated. Both plaintiffs testify that an account was stated between them and the defendant, and that the balance sued for was found to be due them from defendant, who had frequently admitted that such balance was so due and owing, and promised to pay the same, but failed to do so, although payment thereof had been demanded about twenty-five times, and that he never raised any objection to the balance as stated to him. The defendant testifies that no account had ever been stated between him and plaintiffs, that hence no balance had been found as due from him, and that no payment had been demanded, nor had he promised to pay any sum to plaintiffs. Thus it became a disputed question of fact as to whether or not an account had been so stated and a balance found as so due. And hence all that defendant’s counsel says about the decision of Lockwood v. Thorne, 11 N. Y., 170, holding thát whether the transaction amounts to an account stated is a question of law, is inapplicable, for in that case it was merely held that certain undisputed facts rendered it a question of law whether an account had been stated in that case, but it is different in this case, for here the question as to whether an account was stated is sharply contested, and is clearly in dispute. The trial judge charged the jury that before a verdict could be rendered for the plaintiffs they must determine whether an account had been stated, showing a balance due plaintiffs, which defendant had admitted as correct, and promised to pay, as testified to by plaintiffs, and if they should believe the testimony of the defendant, then that their verdict should be for him.

The amendment of the complaint was within the discretion of the judge, and was properly allowed.

The judgment is affirmed, with costs.

Newburger, J., concurs.  