
    Edward MacDonald, Respondent, v. Henry Jaffa, Appellant, Impleaded with Ray Jaffa.
    
      What is not a mutual, open and current account — Statute of Limitations.
    
    Charges for services rendered, consisting of petty items of plumbing work done on various days beginning May 2, 1891, and ending on December 29, 1892, do not, in the absence of proof as to any agreement in reference to the time of payment or that the work was performed under a continuous contract, constitute a mutual, open and current account under section 386 of the Code of Civil Procedure, payment upon which within six years will prevent the running of the Statute of Limitations.
    Appeal by the defendant, Henry Jaffa, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, in favor of the plaintiff.
    
      
      Charles J. Bélfer, for the appellant.
    
      Max Brill, for the respondent.
   Jexks, J.:

The action is for work, labor and services in 1891 and 1892. The defendants plead payment, accord and satisfaction, the Statute" of Limitations and general denial. The summons was issued ou December 20, 1898, and was served on December 21, 1898'. Upon trial, the court dismissed the complaint as to Ray J affa and gave judgment against Henry Jaffa for fifty-one dollars and ninety-seven cents damages, besides costs. The bill of particulars shows many petty items of plumbing work done on various days, beginning May 2, 1891, and ending on December 29, 1892. It appears that the services (many of them being repairs) were such as ordinarily are rendered by a plumber to a householder, as occasion requires There is no proof of any agreement as to time of payment, or that the work was performed under a continuous contract. Moreover, it appears that bills for parts of the work were rendered from time to time. The Statute of Limitations was a bar to all of the items save that of December 29, 1892, unless the defendant had made it unavailable. The learned trial justice held that payment on account had been made within six years, and that, therefore, the statute did not apply. Even considering the account as a totality, I cannot find any evidence of such payment. The plaintiff, when asked to state what work was done within six years immediately before the commencement of the action, answered : “ The last work done at Mr. Jaffa!s house was on December 29, 1892 * * "x" repairing leak under sink, two dollars and ninety-eight cents.” When asked, on cross-examination, whether he remembered the last time a payment was made to him, which, according to his bills, “ was twelve dollars and seven cents,” he answered: “ He (the defendant) paid that in his own rooms after my bookkeeper called at his house a number of times. He paid that to me personally; he paid it in his rooms, at his house.” This payment is evidently that stated in the last credit on the bill of particulars, under the date of December 11, 1892. Here is not a balance due upon a mutual, open and current account under section 386 of the Code of Civil Procedure, for the account consists of but items upon the one side and of payments upon the other. (Ross v. Ross, 6 Hun, 80; Green v. Disbrow, 79 N. Y. 1.)

The judgment against Henry Jaffa must be reversed and a new trial must be ordered. The judgment as to Ray Jaffa is affirmed.

All concurred.

Judgment of the Municipal Court against Henry Jaffa reversed and new trial ordered, costs to abide the event; judgment as to Ray Jaffa affirmed, without costs.  