William Davis, Respondent, v. Abraham L. Fromme, Appellant

William Davis, Respondent, v. Abraham L. Fromme, Appellant. Account stated —• evidence insufficient to show a hotel bill to be such. The testimony of the manager of a hotel, that it was a rule of the hotel that bills should be presented weekly to guests, and the production on the. trial of a bill made out by the manager’s clerk against a guest, which, however, the manager was unable to say had ever been presented to the guest, or that it was retained by him without objection, fails to establish an account stated between the proprietor of - the hotel and the guest. Appeal, -by the defendant, Abraham L. Fromme, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s officé on the 6th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes. Jacob Fromme, for the appellant. AdelbeH F. Oarroll, for the respondent. ■ [MAJORITY — Per Curiam:] Per Curiam: The action is upon an account stated of a debt for hotel accommodations furnished the defendant by the plaintiff, the proprietor of the Oriental Hotel in the city of New York. The only witness called was the manager of the hotel. A bill was shown him for the amount of the claim, made out by the manager’s clerk, but he expressly admitted that he did not personally know whether it was ever delivered to the defendant. It was also alleged that weekly' bills were rendered, but the. witness was merely able to state that there was a rule to this. effect, and himself remarked that the clerk would have to be called on the point. Nor did the witness know that' the bills, if delivered, were retained by the defendant without objection.. He was merely able to state, “I never remember a word being spoken to me in reference to them.” . The evidence was in all respects insufficient to establish an account stated, and there was no attempt to prove the amount of the bill for which a recovery was had. The judgment and order should be reversed and a new trial ordered, costs to appellant to abide the event. Present —Van Brunt, P. J., Barrett, Rumsey, Williams and Patterson, JJ. Judgment and order reversed, new trial ordered, costs to appellant to abide event.