Furman v. Terbush
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Elmer Terbush, from a judgment of the Supreme Court io favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 3d day of November, 1917, upon the decision of the court after a trial before the court without a jury.
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Appeal by the defendant, Elmer Terbush, from a judgment of the Supreme Court io favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 3d day of November, 1917, upon the decision of the court after a trial before the court without a jury. This is an action for goods sold and delivered between October 1, 1912, and September 1, 1914. The defense is that a judgment in favor of the defendant in a former action by the plaintiff against the defendant is a bar to this action. In the former action the complaint was as follows: “ The plaintiff complains of the…
1Opinion of the Court
Cochrane, J.:
The former action was on an account stated and the defendant had judgment therein.
“ A judgment for defendant in an action on an account stated, on the ground that no account had been stated, is not a bar to a subsequent action on the open account.” (1 C. J. 730.)
*404That rule is inapplicable here because the defendant did not recover his judgment in the former action “ on the ground that no account had been stated.”
Both pleadings in that action allege an account stated. Both pleadings also show the receipt and retention by the plaintiff by virtue of an account stated of $447.34 which…
2Cases cited3 opinions
- Bruen v. HoneNew York Supreme Court · 1848
- Carpenter v. . KentNew York Court of Appeals · 1886
- Jarvie v. ArbuckleAppellate Division of the Supreme Court of the State of New York · 1914