Goings v. Patten
New York Court of Common Pleas
Appeal by the defendants from an order of the Court at Special Term, granting a motion to preclude evidence being given, upon the trial, of an account set up in the answer.
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Appeal by the defendants from an order of the Court at Special Term, granting a motion to preclude evidence being given, upon the trial, of an account set up in the answer. The Court made a qualified order that “ the defendants be precluded from giving any evidence of the account, and the items thereof stated and mentioned in the answer of the defendants served in this action, except so far as may be necessary to establish the single defence of an account stated and settled between the parties, it being alleged, on this motion, that that is the only defence sought to be interposed in this…
1Opinion of the Court
By the Court.
Daly, F. J.
The appellant insists that the judge should have decided whether this was or was not an averment of an account under the 158th section of the Code ; that if it were not, the plaintiff’s motion should have been denied, and that if it were, that the defendants should have been allowed time to furnish items upon terms. I do not see that this necessarily follows. A party may fail to establish the stating of an account, but that does not cut him off from any defence he may have upon the unsettled account. The two *170defences are not inconsistent. The statement of an account,…
2Cited by2 opinions
- Munn v. CookNew York Supreme Court · 1890
- White Hall & Plattsburg R. R. v. MyersNew York Supreme Court · 1872