The amended complaint purports to set forth a cause of action on an account stated. It is alleged that “ an account was stated between the plaintiff and the defendant (a copy whereof is hereto annexed, marked 1 Exhibit A ’ and made a part hereof); that upon such statement a balance of Six thousand six hundred dollars ($6,600) was found and agreed to be due to the plaintiff from the defendant; * * * that the defendant then and there promised to pay the same, but that no part thereof has been paid.” Such a *496promise, if made, is enforcible only in so far as it is based on the alleged account stated; for there are no allegations other than those quoted above to in any way suggest a contractual obligation..
Turning then to “ Exhibit A ” we find that it is made up of copies of two letters, exchanged between the parties and a statement of an account. It appears from these exhibits that it stated a balance to be due from defendant to plaintiff of $6,600 for 22.00 M. “ Colorgraphic Mailers and Cards on hand.”
Plaintiff’s letter reads:
“ Referring to the enclosed regular monthly statement of account as at Aug. 1st, please note that the June 28th charge amounting to $6,600 is now due.
“Will you kindly compare the same with your books and if it agrees, be good enough to favor us with check at an early date? ”
Defendant’s reply is in part as follows:
“ Answering your letter of August 1st, regarding your June 28th charge against us amounting to $6,600, which covers work done for the Superior Underwear Company, we must ask you to wait until our client pays us for this job, the reason for this being that the job was ordered to be delivered at a specified time and you were 35 days late on this delivery; therefore, the job was. of no value to them at that time necessitating .them carrying it over for another season.
“We expect that the Superior Underwear Company will make payment within a reasonable time and we must ask your indulgence in the matter until that time.”
These communications so interchanged between the parties, it is argued by plaintiff, constitute an account stated. Plaintiff’s theory is in effect that they foreclose defendant from offering any defense. Though not without some force as tending to admit liability, the letter from defendant is far from an unqualified expression of acquiescence that the sum of $6,600 is due as set forth in the statement inclosed in plaintiff’s letter. It is to be borne in mind that we are considering whether the writings copied into “ Exhibit A ” in and of themselves constitute an account stated and not merely their evidentiary value to prove, with other evidence, an account stated. The letter from defendant may be regarded as an intimation that defendant will not pay any part of the claim if it is not paid by the underwear company.
In Quincey v. White (63 N. Y. 370, 377) the court said: “ An account stated is an admission of the correctness of the account. The weight of this kind of admission depends upon circumstances. If both parties personally examine an account and assent to its correctness, it furnishes very clear evidence of the fact. If an *497account is delivered to a party, and he makes no objection to it for a period sufficient to enable him to do so, it may be inferred that he assented to its correctness, and it would prima facie prove the account. The force and character of an account stated are well expressed in Lockwood v. Thorne (18 N. Y. 285). The rule is not an arbitrary or artificial one. It is based upon the ordinary conduct of men in protecting their own interests. If a charge is made against a person, or an assertion of indebtedness, under such circumstances that if not true such person would naturally deny it, the inference may be drawn that, by not denying he assented to it. This species of proof, that is an inference from silence, is, of course, far from conclusive, and not always very satisfactory, but it is sufficient often, in the absence of contradictory evidence, to establish the fact sought to be proved. There must be enough shown, however, to justify an inference of assent in order to make it prima facie proof.”
In Newburger-Morris Co. v. Talcott (219 N. Y. 505, 511) it was said: “ There is no doubt that an account stated may sometimes result from the retention of accounts current without objection (Knickerbocker v. Gould, 115 N. Y. 533, 537; Spellman v. Muehlfeld, 166 N. Y. 245). But the result does not always follow. It varies with the circumstances that surround the submission of the statements (Harvey v. West Side Elevated R. Co., 13 Hun, 392; Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289, 300), and those circumstances include, of course, the relation between the parties.”
In Volkening v. DeGraaf (81 N. Y. 268) Chief Judge Folger said: “ To maintain the action as averred in the complaint, the plaintiff must prove an account stated; that and nothing else will support his allegations. An 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.”
In Stenton v. Jerome (54 N. Y. 480) it was said: “But what is an account stated? It takes two parties to make one, the debtor and creditor. There must be a mutual agreement between them as to the allowance and disallowance of the respective claims, and as to the balance as it is struck upon the final adjustment of the whole account and demands of both sides. Their minds must meet as in making other agreements, and they must both assent to the account and the balance as correct.”
We are of the opinion that the allegations of plaintiff’s complaint are insufficient to state a cause of action. The defendant’s motion, therefore, to dismiss the complaint should be granted.
*498The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within twenty days from service of order on payment of said costs.
Dowling and McAvoy, JJ., concur; Merrell and Finch, JJ., dissent in separate opinions.