Blaut v. Borchardt

McCarthy, J. We think the demurrer in this case was properly overruled. • The answer, although partially inconsistent, yet was consistent in the fact of the denial of an account stated, the reason therefor being matter of proof and not of pleading. An account stated is not conclusive upon either party, but is simply prvma facie presumptively correct, and may be impeached for any error induced by mistake or fraud. It then loses its force and character. Sampson v. Freedman, 102 N. Y. 699-701; Goodwin v. Wertheimer, 99 id. 149-154. Again, the appellant says that the counterclaims are demurrable in law on their face because the defendant does not demand an affirmative judgment in his answer, but this is not necessary. See Code Civ. Proc. §§ 503, 504, 509. - The last section leaves the matter in the discretion of the defendant. In the case at bar the defendant, although setting up many claims which, when estimated together, would be in excess of the plaintiff’s, only seeks to he allowed so much as will equal [198] the plaintiffs claim. See Code Civ. Proc. § 502, subd. 1; see, also, § 501. All the counterclaims appear on the face thereof as having existed at the time of the commencement of the action. The defendant can only recover, however, a counterclaim which is due at the time of the making of the assignment, and this is a matter of proof at the trial. The order is, therefore, affirmed, with costs. Van Wyck, J., concurs. Order affirmed, with costs.