Interman Indus. Products, Ltd. v. R.S.M. Electron Power, Inc.

• Decision Date: 11 June 1975
• Citation: 332 N.E.2d 859,37 N.Y.2d 151,371 N.Y.S.2d 675
• Parties: , 332 N.E.2d 859 INTERMAN INDUSTRIAL PRODUCTS, LTD., Appellant, v. R.S.M. ELECTRON POWER, INC., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 675

371 N.Y.S.2d 675

37 N.Y.2d 151, 332 N.E.2d 859

INTERMAN INDUSTRIAL PRODUCTS, LTD., Appellant, v. R.S.M. ELECTRON POWER, INC., Respondent.

Court of Appeals of New York.

June 11, 1975.

Jessel Rothman, Mineola, for appellant.

Irwin Littman, Merrick, for respondent.

GABRIELLI, Judge.

The issue presented may be phrased as follows: Does an account stated, unsupported by any written document subscribed by the party to be charged thereunder, constitute 'an instrument for the payment of money only' entitling the moving party to accelerated summary judgment pursuant to the procedure provided by CPLR 3213? Both Special Term and the Appellate Division held that an account stated does not constitute an instrument for the payment of money only, and have ruled that the appellant may not avail itself of the procedure provided in CPLR 3213. We affirm.

The defendant (R.S.M.) is engaged in the business of producing silicon transistors and rectifiers for power equipment manufacturers, and plaintiff Interman is a supplier of silicon material. During the period from April 12, 1973 to August 7, 1973, R.S.M. issued purchase orders for the supply of silicon slices, and Interman contends that it delivered the requested materials pursuant to these purchase orders witho objection or protest. It is further alleged that the agreed value of this merchandise was in the amount of $40,839.94. Defendant disputing this contention, asserts that Interman did not supply the goods in the quantities ordered, or at the prices specified, and that the appellant unilaterally raised its prices without respondent's consent or approval.

During May, 1973 through August, 1973 Interman furnished the purchaser with a written statement of account for each month which purportedly represented the merchandise shipped and delivered during the prior month. Under these accounts, payment was due net 30 days, and each statement of account set forth the following request: 'Please notify us promptly if this statement does not agree with your records.' R.S.M. does not deny that it received these accounts stated totaling $40,839.94, nor does it assert that it filed any objection thereto, but in response to plaintiff's motion for summary judgment pursuant to CPLR 3213 both the accuracy and the correctness of these statements of account are disputed.

The parties are also in disagreement as to the effect of a check for $8,693.15 deliver by R.S.M. on August 6, 1973. According to R.S.M. payment on this check was stopped as a result of alleged violations of the contracts. Interman, on the other hand, avers that payment on this check was stopped because there were insufficient funds in the bank account.

Claiming that the sum of $40,839.94 was owed to it upon these accounts stated, Interman served a summons, affidavit and notice of motion by which it sought an accelerated summary judgment upon the ground that the action was based on instruments for the payment of money only, pursuant to the procedure set forth in CPLR 3213 which states: 'When an action is based upon an instrument for the payment of money only * * * the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint.'

As was stated nearly one hundred years ago by Chief Judge Folger, '(a)n account stated is an account balanced and rendered, with an assent to the balance express or implied; so that the demand is essentially the same as if a promissory note had been given for the balance' (Volkening v. DeGraaf, 81 N.Y. 268, 270); and in Newburger-Morris Co. v. Talcott (219 N.Y. 505, 512, 114 N.E. 846, 848) Judge Cardozo wrote as follows: 'the very meaning of an account stated is that the parties have come together and agreed upon the balance of indebtedness, Insimul computassent, so that an action to recover the balance as upon an implied promise of payment may thenceforth be maintained'. Thus, while the mere silence and failure to object to an account stated cannot be construed as an agreement to the correctness of the account, the factual situation attending the particular transactions may be such that, in the absence of an objection made within a reasonable time, an implied account stated may be found (Corr v. Hoffman, 256 N.Y. 254, 266, 176 N.E. 383, 388).

Interman, cognizant of the fact that R.S.M. never expressly ratified the propriety of the accounts stated, argues that it may be found to have impliedly acquiesced in the correctness of the accounts by its failure to have interposed an objection thereto prior to the institution of this proceeding for summary judgment. However, even if we accept such an assertion that an implied account stated may be found to have existed, this, in and of itself, is not sufficient to entitle the appellant to avail itself of the procedural device provided by CPLR 3213.

CPLR 3213 is intended to provide a speedy and effective means of securing a judgment on claims presumptively meritorious. In the actions to which it applies, 'a formal complaint is superfluous, and even the delay incident upon waiting for an answer and then moving for summary judgment is needless.' (First Preliminary Report of Advisory Committee on Practice and Procedure, p. 91; NY LegisDoc, 1957, No 6(b), p 91.) However, in order to qualify for CPLR 3213 treatment, it is incumbent upon the appellant to show that the accounts stated, on which its action is based, '(are) instruments for the payment of money only.' The question of what constitutes an 'instrument for the payment of money only' may appear to be a vexing problem (4 Weinstein-Korn-Miller, NYCivPrac, par 3213.02a), and, according to one commentator, there is already a plethora of irreconcilable case law on this subject (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR...