(dissenting). From April 1, 1897, to October 11, 1897, the litigants were partners, under the firm name of Mitchell & Dolan, engaged in retailing, in a small way, meats and fish at Penn Yan, N. Y. The firm was dissolved by mutual consent October 11, 1897, and 19 days thereafter (October 30,1897) this action was begun to adjust the accounts of the firm; and it was tried March 8, 1898. The referee found, on an adjustment of the partnership accounts, that there was due from the defendant to the plaintiff the sum of $151.41. This result was reaqhed from the firm books, which were kept by the defendant, and from his testimony; he being called as a witness by the plaintiff to prove his case. The plaintiff was not sworn, and the correctness of the books kept by the defendant was not challenged, nor was the truthfulness of his testimony in any way controverted, nor was his credibility impeached. Neither litigant complains that the amount stated by the referee as due on account of the firm matters is erroneous in any particular. , The plaintiff gave no evidence tending to show that he had sought an amicable adjustment of the partnership matters, or that the defendant had ever refused to settle those matters, or that his conduct had been unfair in any respect. Under such a state of facts, the referee erred in charging the defendant personally with the costs of this equitable action unnecessarily prosecuted by the plaintiff. He should have been denied costs. The very most that the referee could have equitably done would have been to charge costs upon the partnership fund, so that they would have fallen equally upon both parties. The discretion of a referee in awarding or refusing costs in an equitable action may be reviewed by this court. Couch v. Millard, 41 Hun, 212.
The defendant, as a counterclaim, set up, in a single count, that the plaintiff was indebted to the defendant for work and for money loaned, with interest thereon. His account against the plaintiff con-
sisted of the following items:
1889. June 1.' Cash............................................. $ 50 00
1890. June 1. Fifty-two weeks’ labor............................ 312 00-
1890. June 14. Two weeks’ labor................................. 18 00
1892. April 28. 190 pounds of beef, at 5 cents per pound........... 9 50
$389 50-
Against this account, the defendant had credited the plaintiff with $225 cash paid at various dates between August 10, 1889,. and June 14,. 1890, and with four items of property sold by the plaintiff .to defendant at prices agreed upon, amounting to $38.95; the total *161amount of credits being $263.95, which, deducted from the debtor items, making no account for interest, leaves a balance due on this account from the plaintiff to the defendant of $125.55, which should have been allowed by the referee against the sum found due the plaintiff on the partnership accounts, unless the item of $50 cash is barred by the statute of limitations. It is urged in behalf of the plaintiff that the item of April 28, 1892 ($9.50), was not established by the evidence on the trial. This position is untenable. The defendant kept a book, on one page of which were entered the debtor items, and on the opposite page were entered the credit items. The correctness of this account so kept was clearly established by evidence drawn out by the plaintiff from the defendant when on the stand; and, further, the plaintiff offered this book in evidence, and made no attempt to impeach it, which established all the items. But, more, the defendant testified (and in this he was not disputed) that January 1,1893, he gave to the plaintiff a bill of the items of this account, showing the balance, and that the plaintiff made no objections to it, and promised to pay it when he got some money. Thus, the account became an account stated. Every item in the account between the litigants, which accrued before the partnership began, was established by the most satisfactory evidence, which was wholly uncontradicted; and no explanation is offered why the referee rejected the defendant’s item of $9.50. His rejection of this item is an error for which the judgment should be reversed.
Again, I think the referee erred in holding that the item for cash loaned was barred by the statute of limitations. He reached this conclusion by holding that as the money was loaned, payable on demand, it did not become due until January 1, 1893, when the whole account was presented, and that none of the credited items which accrued before that date could have been applied as payment, or in part payment, of the $50 item not then due. In reaching this conclusion the referee failed to observe that the defendant testified (and in this he was not contradicted) that the plaintiff was asked to pay this item about a year after it was loaned to him, which evidence was drawn out by the plaintiff’s attorney upon cross-examination. As before stated, the cash was loaned June 1, 1889; and, if the demand for payment was made just one year therefrom, it became due June 1,1890, after which date the plaintiff paid to the defendant six items, which amounted to $50.95, which were credited generally on the account in which the item of $50 appeared, which prevented the statute of limitations from running. In case a mutual account exists between two persons, some of the items of which are barred by the statute of limitations, and the mutual account is settled and agreed on,—becomes an account stated,—the party to whom the balance is due may recover it, though some of the items are barred by the statute of limitations. Allen v. Stevens, 1 N. Y. Leg. Obs. 359; Ashley v. Hill, 6 Conn. 246; Smith v. Forty, 4 Car. & P. 126; Ashby v. James, 11 Mees. & W. 541. The learned counsel for the plaintiff urges that the defendant’s bill of particulars served in this action shows that the payments made by the plaintiff to the defendant on this account were applied on wages, and not upon the general ac*162count. The bill of particulars was not read in evidence on the trial, which is a sufficient answer to the plaintiff’s position, so far as the present record is concerned; but, if it had been read in evidence, it being inconsistent with the answer and with the evidence, clearly-showing, so far as this record is concerned, that the account had become an account stated, the question became one of fact, as to bow the payments were actually applied, or'should have been applied, under the rules of law governing the application of payments. In case there is a variance between a bill of particulars and the evidence, the latter will control, and the variance will be disregarded, unless the adverse party has been misled. Hoag v. Weston, 10 Civ. Proc. R. 92; 2 Wait, Prac. 352, and cases cited.
The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.