Opinion
October 13, 1949.
David Haar for plaintiff.
Sidney Kramer for defendant.
Motion to strike out two defenses as insufficient in law. The action is brought by the defendant's former exclusive sales representative to recover commissions on orders procured by him and on orders accepted from dealers in the plaintiff's territory on which he claims to be entitled to commissions. The first defense sought to be stricken pleads the rendition of regular monthly statements accompanied by checks to and their acceptance by the plaintiff without objection and that by reason thereof an account was stated. The second defense repeats the first defense and alleges that the plaintiff is estopped from claiming the incorrectness of the statement. In support of this motion the plaintiff makes but one contention: that an account stated is not and can never be a defense but is only a cause of action. The authorities do not sustain the plaintiff's position but indicate the contrary. ( Bullard v. Raynor, 30 N.Y. 197, 201; Lockwood v. Thorne, 11 N.Y. 170.) By its very nature, an account stated is an agreement between the parties on the state of the account between them. There seems no reason why the agreement may not be invoked by either party, regardless of the one in whose favor a balance is shown.