Appellate Terms of the Supreme Court of New York, 1915

Hauser v. P. J. Ritter Conserve Co.

Appellate Terms of the Supreme Court of New York · Decided May 13, 1915 · Pendleton

153 N.Y.S. 216 (New York Supplement)

Counsel

Graham & L/Amoreaux, of New York City (Ralph Polk Buell, of New York City, of counsel), for appellant., Groehl, Weiss & Neuwirth, of New York City (John J. Weiss, of New York City, of counsel), for respondent.

Opinion of the Court

PENDLETON, J.

This is an action on an account stated. The question is one of fact,, whether the parties agreed on a fixed sum as being due. Plaintiff in his testimony given in rebuttal practically concedes the contention of defendant’s witnesses that defendant’s sales manager said at the time there were certain deductions to be made, thus negativing his contention of an account stated. If plaintiff had sued on his contract, the question of what, if any, deductions were proper, could have been tried out.

Having elected instead to sue on an account stated, and failed to establish it, the judgment should be reversed, with costs, and judgment rendered for defendant, with costs, without prejudice to a new action. All concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.