
    Mirian A. Kent, Respondent, v. Leslie B. Wilson and Duncan M. Ferguson, Doing Business under the Copartnership Name of L. B. Wilson & Company, Appellants.
    Second Department,
    March 15, 1912.
    Bailment — action to recover moneys from depositary — evidence not showing accord and satisfaction — account stated.
    Action to recover abalance of moneys deposited with the defendants to be accounted for by them. ■ Evidence examined, and held, insufficient to establish an accord and satisfaction, and that the jury would have been justified in finding that the plaintiff was not indebted to the defendants. The rendition of an account does not make an account stated, and the failure to object only raises a presumption which may be rebutted by proof of any circumstances tending to a contrary conclusion.
    Appeal by the defendants, Leslie B. Wilson and another, doing business under the copartnership name of L. B. Wilson & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1911, as modified by an order entered on the 3d day of July, 1911, denying the defendants’ motion for anew trial made upon the minutes.
    
      Harold C. Mitchell, for the appellants.
    
      Harry E. Lewis [Charles F. Murphy with him on the brief], for the respondent.
   Jenks, P. J :

The plaintiff deposited $1,985.54 with the defendants, who are bankers and brokers, to be accounted for. The defendants heretofore have accounted for $985.54 thereof and this action is to recover the balance. The deposit represented the proceeds of policies payable to the plaintiff upon the life of plaintiff’s former husband, who died in the service of the defendants. - There is proof that for a period the defendants sent monthly statements of this account to the plaintiff, which were received without demur, and the contention of the appellants is that as thereby “a complete accord and satisfaction was shown,” the trial court should have dismissed the plaintiff or should have directed the verdict against her. The first statement read in evidence is dated September 30, 1908, and shows credit for the deposit, with interest, and debits of items specified as cash, each of small sums save “September 30 Cash 1,000.” The subsequent statements are drawn' with respect to the balance shown upon this first statement. Giving due probative force to this evidence as to the account and the plaintiff’s conduct with respect to it, the proof was not sufficient to cast liability upon the plaintiff if no debt or obligation existed against her and in favor of the defendants. (Austin v. Wilson, 33 N. Y. St. Repr. 503 and cases cited; Bradley Fertilizer Co. v. South Pub. Co., 17 N. Y. Supp. 587; Chase v. Chase, 191 Mass. 556; Davis v. Seattle Nat. Bank, 19 Wash. 65; French v. French, 2 M. & G. 644.) Upon the evidence the jury could have determined that there was neither existing debt nor obligation as between the plaintiff and the defendant, for although defendants testified that the plaintiff agreed that they could apply this $1,000 upon a shortage discovered in the accounts of her said husband, which they had done, the plaintiff, while admitting that the defendants had informed her of a shortage and that they could keep $1,000 of this deposit to apply thereto, denied that she had ever said to the defendants that she was willing or was satisfied that any such application should be made. The verdict was for the plaintiff.

It is well settled that the rendition of an account does not make an account stated, and the omission of, objection but raises a presumption capable of rebuttal by proof of any circumstances tending to a contrary conclusion.” (Guernsey v. Rexford, 63 N. Y. 631.) The plaintiff testifies that one of the defendants told her to draw against the deposit up to $1,000, that he would inform her when the deposit was thus reduced, and that thereupon she must not draw against it by checks or drafts, but upon personal application to him. And her contention is that this item of $1,000 represented to her a deduction of this fund to be reserved against her checks or drafts. The said item, “Cash 1000 ” is not so self-explanatory as to reject as incredible .this testimony of the plaintiff’s understanding of it.

The judgment and order must be affirmed, with costs.

Hirschberg, Burr, Woodward and Rich, JJ., concurred.

Judgment and order affirmed, with costs.  