John Klein Wagon Works v. Hencken-Willenbrock Co.

Page, J. This action was brought for work, labor and services rendered and materials furnished in and about the repairs of certain wagons and the supply of certain repair parts between October, 1902, and ¡November 9, 1905. The action was commenced on June 23, 1909. The defendant pleads the Statute of Limitations. The plaintiff contends that a payment of twelve dollars made in ¡November, 190-5, was sufficient to take any of the items included in the account out of the Statute of Limitations. The trial judge apparently adopted this view. This was error. This was not a mutual, open and current account, provided for by section 386 of the Code of Civil Procedure. There was no evidence of reciprocal demands between the parties. There must be items on both sides oth.er than cash payments. Lowenthal v. Rosnick, 110 N. Y. Supp. 1045; Elwood v. Hughes, 109 id. 25. Therefore, the items of plaintiff’s [426] claim prior to June 23, 1903, must be excluded from plaintiff’s recovery. Several small items were delivered to the American Express Company to be transported to the defendant. The defendant contends that this is not a good delivery. Where there' is no agreement as to the delivery, whether the delivery to a common carrier is sufficient becomes a question of fact; and the judge below decided that fact in favor of the plaintiff. There are no other exceptions that require consideration. The judge of the Municipal Court sitting without a jury has determined the issues in favor of the plaintiff, and the evidence was sufficient to sustain his finding. The judgment should be modified by deducting therefrom the sum of fifty-seven dollars and twenty-five cents, with interest on twenty-four dollars and fifty cents from October 20, 1902; on twenty-five dollars and twenty-five cents from January 19, 1903, and on seven dollars and fifty cents from J une 9, 1903, making a total of eighty-one dollars and forty-five cents, and as modified affirmed, without costs to either party as against the other. Seabury and Lehman, JJ., concur. Judgment modified, and as modified affirmed, without costs to either party.