Supreme Court, Appellate Term, May, 1900.

[Vol. 31.

must, for there is no evidence to the contrary, that the plaintiff was a bona fide holder for value, the accommodation indorser became, as between himself and the plaintiff, the principal debtor, and could avail himself of the benefit of any security held by the creditor, only by paying the debt and then enforcing his right to subrogation as to the collateral security. The defendant was permitted to introduce evidence tending to show that the plaintiff, after he had become possessed of the note, had returned collateral security to Miller, the maker, or had permitted him to reacquire its possession and send it beyond the State, so that plaintiff, when he demanded payment, could not tender to defendant the collateral, or place him in a position whereby he could resort to it for his protection and recoupment. Such a defense, if properly pleaded and duly proven, might be available. Ocean Nat. Bank v. Fant, 50 N. Y. 474. The difficulty is, however, that no such defense was pleaded, and conscquently no evidence thereof could properly be received. The defendant specifically admitted receipt of protest and set forth no defect or invalidity therein. His general allegation, at the end of his answer, that he had been discharged from any and all liability on the note was a mere conclusion of law. Upon the pleadings as they stand, the evidence alluded to was inadmissible, and, having been properly objected to and excepted to, the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Present: TRUAX, P. J., SCOTT and DUGRO, JJ.

Judgment reversed and new trial granted, with costs to appellant to abide event.

EDWARD P. HATCH, Appellant, v. Gustave von Taube, Respondent.

(Supreme Court, Appellate Term, May, 1900.)

Proof that an agent of a vendor called upon the vendee, delivered to him a paper which read "Balance due on amount of account rendered, $132.12 ", told him that he represented the vendee, that he had called to collect the account that was overdue, that the vendee then

Misc.]

Supreme Court, Appellate Term, May, 1900.

offered a lot of books in payment, that the agent refused them, that the vendee then paid five dollars and said he was going to pay the whole bill, requires a submission to the jury of the question whether the evidence established an account stated, and a dismissal of a complaint, based upon such a cause of action, is erroneous.

APPEAL from a judgment of the General Term of the City Court of the city of New York, affirming a judgment in favor of defendant, dismissing the complaint, and from an order denying a motion for a new trial.

The plaintiff was successor to Lord & Taylor.

Henry Tompkins, for appellant.

Elias Rosenthal, for respondent.

Per Curiam. The questions determinative of the result of this appeal are, first-whether the complaint contains allegations of a cause of action upon an account stated; and second-whether the evidence considered most favorably for the plaintiff sufficed to establish an account stated.

We agree with the learned General Term in its view as to the first question, but as to the second we feel obliged to differ, and will state briefly the reasons. The witness Otto testified that he called upon the defendant in April, 1895, and delivered to him a paper, the contents of which was Balance due on amount of account rendered, $132.12," and told defendant that he represented Lord & Taylor, and that he called to collect the account that was overdue; that defendant offered in payment a lot of books and, upon the nonacceptance of the offer, paid $5 on account and said. he was going to pay the whole bill. This evidence called for the submission to the jury of the issue as to the account stated. To establish an account stated, there must be evidence of mutual assent to the account as rendered, either express or implied. Primarily it was necessary to produce evidence that an account showing a balance due had been rendered. And this duty the plaintiff performed, for, there was sufficient evidence to warrant a finding of the rendition of such an account in the circumstances of the delivery, by the witness Otto, of the paper, the contents of which was "Balance due on amount of account rendered, $132.12," and the action of the defendant. From the words and conduct of defendant, under

Supreme Court, Appellate Term, May, 1900.

[Vol. 31.

the circumstances, an admission that an account showing a balance due of $132.12 had been rendered was fairly inferable. That the parties mutually assented to this account is a reasonable inference from what occurred at the time of the call of the witness Otto. The witness, in behalf of the plaintiff, presented the paper claiming $132.12 as the balance due upon an account rendered, and the defendant said he was going to pay the whole bill, and did pay $5 on account. Certainly a mutual assent to the account as rendered should be implied from these circumstances. In Schutz v. Morette, 146 N. Y. 141, it is said that: "The cause of action in such a case is * * the agreement of the parties made after the transactions constituting the account that a certain balance remains due from the one to the other, and a promise of the party found to be indebted to pay to the other the sum so ascertained." In the present case, the mutual assent to the balance due, and the promise to pay, were evidenced and uncontradicted.

*

The judgment is reversed and a new trial is ordered, with costs to the appellant to abide the event.

Present: TRUAX, P. J., SCOTT and DUGRO, JJ.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.

JOHN J. Fox, Appellant, v. GEORGE MULLER et al., Respondents. (Supreme Court, Appellate Term, May, 1900.)

Costs

- Taxation against separate defendants after a verdict against all-Action not severed.

After a verdict has been rendered against all the defendants in an action, it should not be severed for the purpose of entering judgment for interlocutory costs against some of them separately.

Such a course is unnecessary as the clerk has power, under section 1246 of the Code of Civil Procedure, to docket judgments for different sums separately against each judgment debtor.

APPEAL from an order of the General Term of the City Court of the city of New York, affirming an order made at Trial Term, denying a motion to sever this action so that judgment be entered against the defendants separately.

Misc.]

Supreme Court, Appellate Term, May, 1900.

William T. Matthies (Henry Cooper, of counsel), for appellant. Hoffman & Hoffman, for respondent Muller.

Max D. Steuer, for respondent Bendit.

Per Curiam. There seems to be no authority for severing an action after verdict against all the defendants. If the costs, awarded against the defendants Muller by the interlocutory judgment, have not been collected, when the time comes to enter final judgment they may be taxed as, and included in the judgments against the Mullers. Code Civ. Pro., § 779. There is no reason why the plaintiff may not enter judgment for different sums against the several defendants. Section 1246 directs the clerk to docket judgments separately against each judgment debtor.

The order applied for is unnecessary, and the order denying it must be affirmed, with costs.

Present: TRUAX, P. J., SCOTT and DUGRO, JJ.

Order affirmed, with costs.

CATHERINE CUNNINGHAM, Respondent, v. THE DRY DOCK, EAST BROADWAY & BATTERY R. R. Co., Appellant.

(Supreme Court, Appellate Term, May, 1900.)

Negligence-Erroneous charge as to liability to passenger injured while alighting from a street car, it being in dispute whether the car had stopped.

Where the plaintiff alleges that she was injured because the defendant's street car, after stopping, started suddenly while she was alighting, and the defendant alleges that she was injured by attempting to alight before the car stopped, it is erroneous for the court to refuse to charge that, if she alighted while the car was in motion, the defendant would not be liable.

Cunningham v. Dry Dock, E. B. & B. R. R. Co., 29 Misc. Rep. 772,

reversed.

APPEAL from an order and judgment of the General Term of the City Court of the city of New York, affirming a judgment of the City Court, entered upon a verdict of a jury.

Supreme Court, Appellate Term, May, 1900.

[Vol. 31.

Hoadly, Lauterbach & Johnson (Eugene Treadwell and Henry Siegrist, Jr., of counsel), for appellant.

A. & C. Steckler, for respondent.

Per Curiam. The plaintiff alleged in her complaint, and on the trial offered evidence tending to show, that, as she was about to alight from one of the defendant's cars, which had been stopped for the purpose of permitting the plaintiff to alight therefrom, said car was suddenly started again through the negligence of the defendant, and plaintiff was thrown to the ground and received injuries. The testimony on the part of the defendant tended to show that the plaintiff received her injuries while attempting to get off the car while it was still in motion; that is to say, the defendant's testimony contradicted that of the plaintiff. Under these circumstances it was error for the court to refuse to charge that, if the plaintiff stepped off the car while the same was in motion, the verdict of the jury should be for the defendant. Patterson v. Westchester El. R. Co., 26 App. Div. 336; Kuhlman v. Met. St. R. Co., 30 Misc. Rep. 417. Also see Savage v. Third Ave. R. R. Co., 29 App. Div. 556; Kelly v. Same, 25 id. 603, and Anderson v. Same, 36 id. 309.

The judgment and order appealed from are reversed with costs, and a new trial ordered, with costs to appellant to abide the event.

Present: TRUAX, P. J., SCOTT and DUGRO, JJ.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.

FANNY C. SWEENY, Respondent, v. THE UNION RAILWAY COMPANY OF NEW YORK CITY, Appellant.

1. Negligence

(Supreme Court, Appellate Term, May, 1900.)

for injuries.

Married woman cannot recover for medical attendance

A married woman, having no separate business, cannot recover the value of medical attendance upon her made necessary by personal injuries caused by the negligence of a street railroad corporation.