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Miller v. Longshore

Supreme Court of New York, Appellate Division

November 15, 1911

MARY E. MILLER, as Executrix, etc., of RICHARD MILLER, Deceased, Respondent,
MARY B. LONGSHORE, as Executrix, etc., of MILES LONGSHORE, Deceased, Appellant.

APPEAL by the defendant, Mary B. Longshore, as executrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 15th day of October, 1909, upon the report of a referee.

The plaintiff's testator operated a grist mill in the county of Herkimer. The testator of the defendant was a physician, with an office in Cold Brook, four miles distant from the mill. The physician owned a farm near the grist mill, occupied by tenants. In pursuance of the direction of the doctor the tenant in possession purchased feed and other supplies for the farm from the miller and they were charged as they were made to the account of the doctor, who also made a few purchases personally which were included in the account, which continued

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from May, 1891, to May, 1903. The doctor died in April, 1904, and the miller in August of the same year.

The doctor during all this period was the family physician of the miller and kept a running account of the professional services rendered and the medicines furnished for the miller and his family. There were no credits on this account and, apparently, neither presented his account to the other. The inference is proper that each knew the other had an account, although there is nothing to indicate that either knew the amount of his own, much less that of the other claim.

The plaintiff presented a verified statement of her account to the defendant May 1, 1905, showing the amount due from the defendant the sum of $293.05. No credits were given for any professional services rendered by the physician, nor was there any recognition of any part of his claim. After more than a year had elapsed without any notice of the claim by the defendant the plaintiff commenced a proceeding in the Surrogate's Court to compel the defendant to account. On the 31st of August, 1906, the defendant rejected the claim of the plaintiff.

The defendant, on the 1st of June, 1906, presented to the plaintiff a verified itemized statement of the account of her husband against Mr. Miller, aggregating $541.75. The only reference to the claim of the plaintiff was in the verification to the account, which, after stating the amount of her claim, continues as follows: 'And that no payment has been made thereon, and that there are no offsets thereto with the exception of a certain claim amounting to the sum of Two Hundred Ninety-three and 05/100 Dollars, which has been filed with deponent by the executrix of the estate of the said Richard Miller, deceased, the justice of which claim is doubted by deponent.'

On the 25th of June, 1906, the attorney for the plaintiff personally served on the attorney for the defendant notice of the rejection of the latter's claim. Later, and on the same day, he mailed a formal notice of the rejection to the defendant at her residence. This action was commenced February 28, 1906, more than six months after the rejection delivered to the defendant's attorney, and within a year after the same was

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mailed to the defendant. No written consent was filed by the defendant that the claim might be heard on the judicial settlement of the account of the plaintiff, as prescribed in section 1822 of the Code of Civil Procedure, nor was any action or proceeding commenced by the defendant. On the 9th of April, 1907, the defendant served her answer, setting up as a counterclaim the claim she had presented to the plaintiff.


Charles R. Carruth, for the appellant.

Charles B. Hane, for the respondent.


The issues were tried before a referee, who allowed the plaintiff's claim in full. The books of the plaintiff's testator were received in evidence, and other proof was given to support the validity of the account presented. The referee found that the account was not rejected until more than a year after its presentation, and that the miller kept honest books and that, as matter of law, the claim was a valid one for the full amount and interest without any specific finding of fact that the articles and produce sold embodied in the account were charged at reasonable prices. The conclusion of ...

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