Hoff v. Pentz, 1 Abb. N. C., 288. 6 probably necessitated and called for amendments on the part of plaintiffs. The privilege which was conceded to one party was properly granted to the other, and we see no error in the referee's rulings on this branch of the case. [The remainder of the opinion related to a question of evidence, and to unimportant exceptions.] All the judges concurred. Judgment affirmed, with costs. 1 2 HOFF v. PENTZ. New York Supreme Court, First Dep., Chambers, 1876. [Reported in 1 Abb. N. C., 288.] 1. Under Code Pro., § 158 [substantially re-enacted in Code Civ. Pro., $531,] the court cannot require service of a further and more particular account because a copy of an account stated, which has been alleged in the pleading and has been served on demand, is unsatisfactory. 2. An account stated cannot be altered. 3. In an action by a trustee appointed to succeed a deceased trustee, for moneys received by defendant for the benefit of the trust estate, defendant alleged an account stated with the deceased trustee. Held, that, in order to obtain details of the items composing such account stated, an examination of the defendant before trial was proper. Plaintiff sued as substituted trustee to recover for moneys received by defendant for the benefit of the trust estate. Defendant among other defences, alleged an account stated with the deceased trustee Barker, and upon demand therefor served a copy of such account. Plaintiff claimed that the account was indefinite and defective, and moved for an order requiring a better account to be served. LAWRENCE, J. One of the defences in this case set up in the defendant's answer is an account stated. A copy of the alleged account stated, purporting to be dated January 1, 1870, has been served upon the plaintiff's attorney, who now moves for a further and better account of an item in said account contained. Goings v. Patten, 17 Abb. Pr. Rep., 339. If it be true that the account served is an account stated between 3 Barker and the defendant, the defendant cannot, so far as I am able to see, serve a further account with Barker; it cannot be altered. The effect of the account is something to be determined on the trial. If the account is false and fraudulent, that fact can be shown on the trial, and its force avoided. I do not consider the plaintiff as entitled to relief under section 158 of the Code [Code Civ. Pro., 531.] But this is a case in which it is clear that an examination of the defendant before trial may contribute materially to aid the plaintiff; and as further relief is asked for, I am inclined to entertain an application for such examination. GOINGS v. PATTEN. New York Common Pleas, General Term, July, 1863. [Reported in 17 Abb. Pr. Rep., 339.] 1. It seems that a defendant relying on an account stated, if he fails to prove that it was mutually adjusted, and the balance ascertained, may fall back upon the accounts and prove that there is, in fact, a balance due him, unless his pleading is so framed as to show that he relies solely on the account stated. 2. A pleader, claiming on an account stated, who refuses to furnish the items of his demand, pursuant to the section 158 of the Code of Procedure [Code Civ. Pro., § 531,] should be precluded from giving evidence of such items further than may be necessary to prove the settlement of the sum due. Appeal from an order precluding defendants from giving 1 evidence of the items of an account. The answer set up certain payments, and a counterclaim upon an account, the items of which were not given; the plaintiffs demanded a bill of particulars, which was refused, whereupon the following order was made: "That the defendants, on the trial of this action, be and they are hereby precluded from giving any evidence of the account and the items thereof, stated and mentioned in the answer of the defendants served in this action, except only so far as may be necessary to establish the single defence of account stated and settled between the parties, Goings v. Patten, 17 Abb. Pr. Rep., 339. 2 it being alleged on this motion that that is the only defence. sought to be interposed in this action, and set up by the defendants' answer." From this order the defendants appealed. 3 DALY, F. J. The appellant insists that the judge should have decided whether this was or was not an averment of an account under the 158th section of the Code; that if it were not, the plaintiff's motion should have been denied; and that if it were, the defendants should have been allowed time to furnish items upon terms. I do not see that this necessarily follows. A party may fail to establish the stating of an account, but that does not cut him off from any defence he may have upon the unsettled account. The two defences are not inconsistent. "The statement of an account," says an old case (Drue v. Thorne, Alleyn), "doth not alter the nature of the debt; it only reduceth it to a certainty." It admits the existence of a prior running account; and because the party relies upon the defence, that it was mutually adjusted, and the balance ascertained and fixed, and fails to prove it, he is not thereby precluded from falling back 4 upon the accounts, and showing that there is, in fact, a claim or balance due to him. He would undoubtedly be precluded from doing so if his pleading were so framed as to show that he relied solely upon the defence of an account stated, for, that being made the sole issue, the other party might come unprepared to try any other. But a party might always join with an account stated an account for the original debt; and if he failed upon the one, he might recover upon the other. (1 Saund. on Pl. and Ev., 42.) In the present case the judge appears to have regarded the defendants' answer as entitling them to prove an account stated, which raises an implied promise to pay the sum found, upon the mutual adjustment, to be due; or, failing in that, to show the existence of a mutual account, and an indebtedness to them arising under it. It would have been entirely consistent with the defence of an account stated for the defendants to have furnished a copy of the account upon which they meant to rely in the event of their failing to prove the stating of an account. They elected not to do so, and so cut themselves off from the right of giving any evidence to that effect, and limited them 5 Gebhard v. Parker, 120 N. Y., 33. selves upon the trial to the proof of an account stated. The 6 defendants have failed to deliver a copy of the account within the time which the Code allows after demand made, the plaintiff was entitled to an order precluding them from giving evidence of it. [After passing upon another point, which is here omitted, the judge concluded:] The clause in the order that it should not be construed as precluding them from establishing the defence of an account stated was unobjectionable. It prevented the possibility of any misconstruction upon the trial as to the meaning of 7 the order. As the defendants had precluded themselves from setting up any other defence, they could in no way be affected injuriously by it. The order at Special Term should be affirmed. GEBHARD v. PARKER. N. Y. Court of Appeals, 2nd Div., 1890. [Reported in 120 N. Y., 33.] 1. Under Code Civ. Pro., § 531,-providing that the party alleging an account in his pleading must deliver to the adverse party, within ten days after a written demand thereof, a copy of the account, and "if he fails so to do, he is precluded from giving evidence of the account," -the better practice is to obtain before trial an order precluding the party neglecting to serve the bill of items from giving evidence thereof.* Action for goods sold. The plaintiffs alleged that the defendants, at the time in question, were co-partners, doing business in the partnership name of "Daily Hotel Gazette Publishing Company" and of the "Daily Standard," and that between July 2, 1885, and August 31, 1885, the plaintiffs sold and delivered to the *Where, in any other action, the Court has ordered a bill of the particulars of the claim or defence of either party to be served, it may, for disobedience to its order, strike out the party's pleading on motion, or stay his proceedings. Gross v.Clark, 87 N. Y., 272; 2 Abb. Pr. & F. 1 Gebhard v. Parker, 120 N. Y., 33. 2 defendants as such co-partners, at their request, certain goods at an agreed price mentioned, which remained unpaid. 3 The defendant Parker denied the alleged co-partnership, and alleged that the partnership of the defendants was dissolved on July 1, 1885, of which the plaintiffs had notice, and that for the goods mentioned in the complaint credit was given to the defendant Frecknall alone, and that the defendants as copartners never hand any dealings with the plaintiffs. The other defendants did not answer. The defendant Parker made written demand of " a bill of items of matters set forth in the complaint as the foundation of the plaintiffs' claim against the defendants." No bill of items was served. On the trial the defendant objected to evidence offered to prove the sale and delivery of the goods referred to in the complaint, on the ground that the plaintiffs had failed to comply with such demand; the objection was overruled and exception taken, and evidence of the sale and delivery was introduced. The only controverted question upon the trial was whether the defendants were partners at the time of such sale, and whether 4 the plaintiffs had any notice of a previous dissolution of the firm. 5 At Trial Term, plaintiffs had a verdict. The General Term of the Superior Court of Buffalo, affirmed the judgment. The Court of Appeals affirmed the judgment. BRADLEY, J. [After stating the facts.] Inasmuch as the alleged sale and delivery of the goods was not controverted by the answer, and no proof of that fact requisite, it is not apparent that the bill of items demanded could have had any essential importance or have furnished any legitimate aid to the defendant upon the issue presented by the pleadings for trial. The only fact which the plaintiffs were, upon this issue, required to establish, was that the defendants, as partners, were liable to pay for the property alleged to have been sold to them, and that was dependent upon the fact, either that they were such partners at the time of the sale, or that the |