Misc.] Appellate Term, First Department, December, 1917. Lockwood case was that this merely possible inference of an assent to the account must be construed in the light of all the circumstances, and that the party sought to be charged must be permitted to show his entire course of conduct regarding the account and how the matter was understood by the other party. The subject is more elaborately discussed in Newburger-Morris Co. v. Talcott, 219 N. Y. 505–511. The Court of Appeals there said, by Cardozo, J.: "There is no doubt that an account stated may sometimes result from the retention of accounts current without objection (Knickerbocker v. Gould, 115 N. Y. 533; Spellman v. Muehlfeld, 166 N. Y. 245). But the result does not always follow. It varies with the circumstances that surround the submission of the statements (Harvey v. West Side Elevated R. Co., 13 Hun, 392; Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289-300), and those circumstances include, of course, the relation between the parties. The debit balances shown by these monthly statements did not, therefore, constitute a present debt. They did not speak the language of present demand for payment or adjustment. They were like the statements rendered by one partner to another. * The implication was that they were offered merely as a basis for subsequent liquidation.' They were provisional advices. They were not definitive demands." It appears to me to be a work of supererogation to comment further on these clear statements of the principles governing implied accounts stated, or upon their application to the instant case. I cannot find, either in the form of the statement of the audit company or in the immediate facts concerning it or in the circumstances by which it was surrounded, any valid basis for the inference that it was to be or that it became the foundation of an account stated. Moreover, the only Appellate Term, First Department, December, 1917. [Vol. 102. testimony as to plaintiff's attitude toward the statement when it was shown to him is that, when Butler said to him "I see the accountants are deducting $10,000," he replied, "Well, I don't see why they should do that because when I came in with you I came in and took your figures as they were;" and thereupon, according to the testimony, the parties forthwith, at defendant's suggestion, agreed to exclude this item from further consideration. Here then there was an objection immediately made by plaintiff, with no room for further dispute because of defendant's immediate acquiescence in the justice of the objection. The facts that plaintiff, as treasurer of the corporation, paid for a service rendered to the corporation, at its request, and that he either put or left in the corporation's safe a statement of account which belonged to the corporation, are entirely without evidentiary value in the premises. It certainly requires no elaborate argument to demonstrate that those official acts cannot be taken as a basis for inferences to be drawn against plaintiff as an individual. From the foregoing exposition of the foundation of respondent's contention that an account was stated in its favor, and bearing in mind that as to this issue the affirmative was upon the defendant, it must be clear that the denial of plaintiff's motion to dismiss the counterclaim was error for which the judgment must be reversed and a new trial granted, with costs to appellant to abide the event. GUY, J. (concurring in part). I agree in the conclusion reached by my colleague, Justice Bijur, that the defendant failed to make out an account stated and that defendant's counterclaim should, therefore, have been dismissed, the statement rendered by the audit company and retained by the plaintiff being merely of Misc.] Appellate Term, First Department, December, 1917. the nature of a statement rendered as between partners for purposes of subsequent liquidation (see NewburgerMorris Co. v. Talcott, 219 N. Y. 505–511); but I am of the opinion that the admission of testimony to the effect that $8,500 of the bills receivable as shown by the books of the company at the time of the making of the account stated, as alleged by plaintiff, are still uncollected, while error, would not require a reversal of the verdict in defendant's favor as to plaintiff's claim, as such testimony did not furnish proof of subsequent occurrences, but merely tended to show the character of the apparent assets of the company at the time of the alleged agreement as known to the contracting parties, and was not seriously prejudicial. The plaintiff had a fair and impartial trial before a jury as to his alleged account stated, and the jury's verdict in favor of defendant thereon was fully justified in view of the inherent improbability of the testimony of plaintiff, an uncorroborated, interested witness, and the discredit thrown upon his testimony generally by his admission that, in making payments to himself subsequent to the time of the alleged account stated, he, as treasurer, drew checks to the order of the company with the intent of concealing the fact that they were for payments to himself. I am of the opinion, therefore, that no new trial should be granted, but that the judgment should be modified so as to make it a judgment generally in favor of defendant and dismissing the defendant's counterclaim. Judgment reversed and new trial granted, with costs to appellant to abide event. Appellate Term, First Department, December, 1917. [Vol. 102. ARTHUR L. FULLMAN, Appellant, v. GEORGE V. ELLIS PLUMBING AND ENGINEERING CO., INC., Respondent. (Supreme Court, Appellate Term, First Department, December, 1917.) Arbitration and award-rules governing arbitration proceedingsjudgments - appeal - Municipal Court Code, § 6(6). Where an award of an arbitrator appointed pursuant to section 6(6) of the Municipal Court Code is based upon an issue not submitted to him by the arbitration agreement, the judgment entered upon the award must be reversed. Under rule 5 of the rules governing arbitration proceedings the clerk of the court, unless a request in writing not to enter judgment upon an award is filed by both parties, must do so within two days after the filing of the award. APPEAL by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant. Arthur L. Fullman, for appellant. John L. Bissell, for respondent. GUY, J. The plaintiff appeals from a judgment entered upon an award of an arbitrator agreed upon by the parties pursuant to a provision of the Municipal Court Code. Subdivision 6 of section 6 of the Municipal Court Code confers jurisdiction upon the Municipal Court "To provide systems of conciliation and arbitration and to enter judgment upon an award of arbitrators.' Pursuant to such authority the court has established a system of arbitration and adopted rules. The parties to this controversy signed a consent according to rule Misc.] Appellate Term, First Department, December, 1917. II of those rules which provides that: "The persons desiring an arbitration shall sign a consent which shall contain the name of the arbitrator, a brief recital of the nature of the controversy to be determined and a statement that they will abide by these rules." The questions submitted by the agreement of arbitration were two, viz.: "Plaintiff claims from defendant $100 for money loaned. Defendant denies the loan, and claims $330 being balance of the proceeds of a certain promissory note for $1,280, alleged to have been delivered by defendant to plaintiff to be discounted. Plaintiff denies this claim." The arbitrator has made a report finding in favor of the entry of a judgment in favor of the defendant for the sum of $405. This report was filed with the clerk of the Municipal Court on August 30, 1917, and the clerk entered a judgment thereon on the 4th day of September, 1917. Rule III of the aforesaid rules requires that" no record of the proceedings before the arbitrator shall be kept," and as the record before us contains only the report of the arbitrator the judgment cannot be reversed unless reversible error can be shown to exist by the record itself. We need consider but two of the points urged as grounds for reversal: (1) That the arbitrator exceeded his power and gave a judgment for the defendant based upon an issue not submitted to him by the arbitration agreement and (2) that judgment was illegally entered by the clerk. But two issues were presented to the arbitrator for his determination: Did plaintiff loan the defendant the sum of $100 and did the defendant deliver to the plaintiff a promissory note to be discounted by the plaintiff and the proceeds turned over to the defendant? It appears from the report that the note in question was made by the Elo Building Company of which one Olson was president. The note was made payable to one Ellis, the president |