Armour & Co. v. Edison Electric Illuminating Co.

Majority

p. 609

(115 App. Div. 57)

ARMOUR & CO. v. EDISON ELECTRIC ILLUMINATING CO. OF BROOKLYN.

(Supreme Court, Appellate Division, Second Department.

October 5, 1906.)

Headnote

Accord and Satisfaction—Pleading.

In an action by a consumer of electricity against the electric company to recover sums paid by plaintiff in excess of the charges made by defendant to others for similar service, an allegation of the answer that prior to the action plaintiff settled and adjusted all accounts of the defendant against plaintiff was insufficient as an allegation of accord and satisfaction, or of a release.

[Ed. Note.—For cases in point, see voi. 1, Cent. Dig. Accord and Satisfaction, § 155; vol. 42, Cent. Dig. Release, § 88.]

Appeal from Special Term, Kings County.

Action by the Armour Packing Company against the Edison Electric Illuminating Company of Brooklyn. Erom a judgment in favor of defendant, plaintiff appeals. Reversed.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.

Philip B. Adams, for appellant.

John L. Wells, for respondent.

This appeal presents all of the questions decided in Armour Packing Co. v. Edison Electric Illuminating Co., 100 N. Y. Supp. 605 , decided herewith. An additional question arises here in this manner: The defendant in addition to alleging that the payments were made pursuant to specific terms in writing between the parties, avers a second separate defense that, prior to the commencement of this action, the plaintiff settled and adjusted all accounts of the defendant against the plaintiff for electric light current furnished at the localities named in the complaint, and the plaintiff paid defendant in full therefor. The plaintiff demurs to this second separate defense as well as to the other, on the ground that the same is insufficient in law upon the face' thereof, and the demurrer should be sustained. This allegation in the answer is nothing more than a reiteration of the allegations in the complaint that the plaintiff paid in full under its contract for all electric current furnished by the defendant. The suggestion made by the respondent that this is an allegation of accord and satisfaction or a pleading of a release does not meet the situation, for it fails to allege that the adjustment was made of the matters and things complained of in the complaint. The allegation of the payment of the bills is not the allegation of payment of the plaintiff’s present claim which is for unjust discrimination, and inasmuch as the gist of the action is an overcharge by reason of unjust discrimination, the payment of the bills is rather a part of the cause of action than a defense.

The judgment in this case must, therefore, also be reversed, and the entire demurrer sustained.

p. 610

Judgment reversed, and demurrer to the separate defense sustained, with costs, and new trial granted; costs to abide the final award of costs. All concur.