Policastro v. Pitske — 120 N.Y.S. 743

Majority

p. 743

POLICASTRO v. PITSKE.

(Supreme Court, Appellate Term.

January 21, 1910.)

Headnote

Accord and Satisfaction (§ 10^[1] )—Compromise and Settlement (§ 5^[1] )—Pay-ment of Disputed Claim—Effect.

Where there was an honest dispute as to the amount due under a contract, and the owner sent a check to the contractor in full payment, and the contractor retained the check for several months, and then used it, there was an accord and satisfaction.

[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 66-74; Dec. Dig. § 10 ;^[1] Compromise and Settlement, Dec. Dig. § 5.^[1] ]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Cleonice Policastro, doing business as the Lorenzo Building Construction Company, against Edgar Pitske. From a judgment for plaintiff, defendant appeals.

Reversed, and new trial ordered.

Argued before GIEGERICH, DAYTON, and LEHMAN, JJ.

Herman H. Kimmel, for appellant.

Charles Eno, for respondent.

Defendant entered into a contract with plaintiff foi alterations and repairs on defendant’s premises at a cost of $1,775. This action is brought to recover $28, an alleged unpaid balance of that amount. The answer is a general denial and account stated. Pleadings unverified. Plaintiff had judgment for amount claimed and $2 costs. Defendant appeals.

Considerable dispute and correspondence occurred between the parties as to the balance due, and on December 12, 1907, defendant wrote plaintiff as follows:

“Enclosed please find check for $7, all that remains of the contract price after making deductions as per contract. There are a great many deductions that I am entitled to make, but rather than go into litigation with you I am meeting you more than half way. Hoping this will end the matter, I remain."

Plaintiff on December 17, 1907, acknowledged the check, stating that it would not be accepted as payment, but he would keep it for evidence. On April 29, 1908, plaintiff wrote defendant in substance that, as—

“we are short of money, * * * we are going to deposit yotir checks of $40 and $7, received November 22, 1907, and December 12, 1907, * * * only with the understanding that these checks will he deposited only on account, and not as full payment, and the balance of $28 will be still unpaid. If not satisfactory to you, kindly inform us, for we insist on getting the full amount.”

The checks were accordingly deposited, and paid on presentation through the clearing house. If plaintiff was unwilling to accept the $7 check, its return to defendant within a reasonable time was necessary. Its use could not by any act or purpose of plaintiff change the conditions imposed by defendant upon its receipt, unless those conditions were changed or modified by him. He remained silent, and the check was paid to plaintiff, and about a year later this action was

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brought. No fraud is claimed by either party. The disputes as to the performance of the contract, and as to the balance due, apparently were honestly contended by both parties. The long retention and final use of the $7 check was, under the authorities, an acceptance of the condition accompanying its receipt, whereby an accord and satisfaction followed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.