Staten Island Shipbuilding Co. v. Viking Concrete Forms, Inc.

Order affirmed, with ten dollars costs and disbursements, with leave to plaintiff to file an amended complaint herein within five days from service upon the attorney for the plaintiff of a copy of the order to be entered herein. We are of opinion that the complaint is defective in that it contains no allegation of an admission of the correctness of the account or the rendition of it to the defendant without objection within a reasonable time so that its silence will be construed into an acquiescence in its justness. (Rodldnson v. Haecker, 248 N. Y. 480, 485.) Lazansky, P. J., Young, Hagarty and Tompkins, JJ., concur; Carswell, J., dissents and votes to deny the motion, with the following memorandum: I think the complaint is sufficient. The allegation, the omission of which is claimed to constitute a defect, is a conclusion of law. The facts upon which it may rest are stated.