HOFF v. PENTZ

HOFF v. PENTZ. N. Y. Supreme Ct., First Department; Chambers, November, 1876. Account. Under section 158 of the Code, the court cannot require a further or more particular account, after service of an account stated, alleged in the pleading. An account stated cannot be altered. The remedy is an examination of the party. Motion for a better account than one already furnished. Newton W. Hoff, trustee appointed to fill a vacancy in the office of trustee under the last will, &c., of John Pentz, deceased, caused by the death of Smith Barker, brought an action against George B. Pentz, the defendant, for $14,500, part of $47,402 received by him from the city of New York for awards for lands belonging to the plaintiff’s estate, which lands had been taken for the opening of St. Nicholas avenue. The defendant demurred to the complaint; but the demurrer was overruled and the order overruling it sustained at general term. He afterwards was allowed to answer; and among other defenses set up an account stated. The plaintiff, under section 158 of the Code, demanded a copy of the account, which has been served. One of the items contained in this account was as follows—“ Contract, $14,500.” The plaintiff claimed that the account was defective in respect to this item, in that it did not specify what the contract was for, or to whom the money was paid, or when it was paid, or for what it was paid. The question came up on an order to show cause why a better account in these respects should not be furnished. George Hill, for the motion, Cited: Johnson v. Mallory, 2 Robt. 683; Fullerton v. Graylord, 7 Robt. 556 ; Dowdney v. Volkening, 37 Super. Ct. (5 J. & S.) 316 ; Kellogg v. Paine, 8 How. Pr. 329 ; Code, § 158 ; Moran v. Morrissey, 18 Abb. Pr. 134; Mason v. Ring, 10 Bosw. 605; Mathews v. Hubbard, 47 N. Y. 428; Lockwood v. Thorne, 18 N. Y. 292 ; Chubbuck v. Vern-am, 42 N. Y. 432. James A. Peering, opposed, Cited: Phillips v. Suydam, 6 Abb. Pr. N. S. 289 ; Bowman v. Sheldon, 5 Sandf. 662; Cadwell v. Groodenough, 28 How. Pr. 479. [MAJORITY — Lawrence, J.] Lawrence, J. One of the defenses in this case set up'in the defendant’s answer is an account stated. A copy of the alleged account stated, purporting to be dated January 1, 1870, has been served upon the plaintiff ’ s attorney, who now moves for a further and better account of an item in said account contained. If it be true that the account served is an account stated between Barker and the defendant, the defendant cannot, so far as I am able to see, serve a further account with Barker; it cannot be altered. The effect of the account is something to be determined on the trial. If the account is false and fraudulent, that fact can be shown on the trial, and its force avoided. I do not consider the plaintiff as entitled to relief under section 158 of the Code. But this is a case in which it is clear that an examination of the defendant before trial may contribute materially to aid the plaintiff; and, as further relief is asked for, I am inclined to entertain an application for such examination.