Opinion
July, 1919.
Defendant's exceptions sustained and motion for new trial granted, with costs to defendant to abide event. Held, that the evidence was sufficient to require submission to the jury of the question as to whether the account between the parties was "a mutual account" as defined in Green v. Disbrow ( 79 N.Y. 1); 1 C.J. 598, § 6; and Miller v. Longshore ( 147 App. Div. 214). If found to be such, then defendant's release of his account and claim against the plaintiff must be held to release only the balance after the application thereon of plaintiff's account against him. All concurred.