(after stating the facts as above). It is clear at least from the statement annexed to the affidavit that court and counsel deemed the complaint to be one at law for a balance due on an accounting, although not on an account stated by the parties. The effect of the judgment is therefore to determine that on a full accounting of all transactions between the parties defendant is indebted for the balance claimed.

The admission, however, in defendant’s petition in the Court of Claims, is not that it owes a balance of $56,409.12. On the contrary, it shows that this is merely the balance originally admitted to be due on account of receipts and disbursements, exclusive of charter hire; indeed, defendant further admits that on that account the amount should be increased to $152,899.22. As against this, however, it asserts its contractual claim for $221,536 charter hire, leaving a net balance due it of $68,636.78.

Clearly, therefore, the alleged admission does not support the judgment. Furthermore, if, as the court determined by striking out the separate defenses and counterclaims, it was without jurisdiction to adjudicate defendant’s claim for charter hire, it could not indirectly adjudicate it by awarding judgment to plaintiff for a balance due over and above the charter hire.

The statement was an ex parte determination of the balance due; it was not and did not purport to be an account stated. On the contrary, several items in addition to the charter hire were the subject-matter of what appears to be a bona fide dispute as to faets and law.

In these circumstances, summary judgment under rule 113 of the New York Civil Practice Rules was not permissible.

Reversed and remanded.