Rosenman Colin Freund Lewis & Cohen v. Neuman
| Decision Date | 14 April 1983 |
| Citation | 461 N.Y.S.2d 297,93 A.D.2d 745 |
| Court | New York Supreme Court — Appellate Division |
| Parties | ROSENMAN COLIN FREUND LEWIS & COHEN, Plaintiff-Appellant, v. Carl H. NEUMAN, Defendant-Respondent. |
C.A. Crum, New York City, for plaintiff-appellant.
L.S. Lea, New York City, for defendant-respondent.
Before SANDLER, J.P., and SULLIVAN, ROSS, CARRO and MILONAS, JJ.
Order, Supreme Court, New York County entered May 21, 1982 which granted partial summary judgment to plaintiff on the first, second, third and fifth causes of action in the complaint on the question of liability only and directed an assessment of damages on those causes of action, modified, on the law, to grant partial summary judgment to plaintiff on its first three causes of action in the amount of damages demanded therein, to provide that full payment of the amount demanded in the third cause of action will satisfy the first and second causes of action, to deny summary judgment to plaintiff on the fifth cause of action and sever the fourth and fifth causes of action for trial, and otherwise affirmed, without costs.
The complaint sets forth five causes of action for legal services rendered to defendant during various time periods, the first, second, third and fifth based solely on the theory of accounts stated. The third cause of action includes the damages demanded in the first and second causes of action. The fourth cause of action based on quantum meruit is not involved in this appeal, and demands recovery for the same services as the fifth cause of action upon an account stated.
As to the first two causes of action, plaintiff has submitted defendant's written acknowledgment of indebtedness in the claimed amounts less defendant's partial payments on account. The amounts that defendant acknowledged were due plaintiff in this document, dated May 18, 1977, were not contested by defendant until this suit was commenced in January 1981. It has long been established that Lockwood v. Thorne, 11 N.Y. 170, 174 (1854).
Even if defendant had received plaintiff's accounts and did not expressly assent, but failed to object to them within a reasonable time, he would be bound by them as accounts stated unless fraud, mistake or other equitable considerations were shown. Fink, Weinberger, Fredman, Berman & Lowell v. Petrides, 80 A.D.2d 781, 437 N.Y.S.2d 1; ...
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