Conway v. Barber — 27 N.Y.S. 136

Majority

p. 136

(6 Misc. Rep. 627.)

CONWAY v. BARBER et al.

(City Court of New York, General Term.

January 18, 1894.)

Headnote

Compromise—Payment under Protest.

Signing a receipt in full on payment of a less sum than was claimed to be due does not preclude the creditor from afterwards recovering the amount actually due, where the sum paid was accepted under protest.

Appeal from trial term.

■ Action by Frederick Conway against Charles G. Barber and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Argued before FITZSIMONS, NEWBURGER, and McCARTHY, JJ.

p. 137

Bemsen & Parsons, for appellants.

Stewart & Macklin, for respondent.

The only exception taken is found at folio 36 of the case on appeal. versation objected to was communicated to one of the defendants, and he made answer thereto. It was therefore admissible. The plaintiff, according to his testimony, was entitled to commissions upon the coal sold by him. As to the alleged settlement claimed by defendants, that claim is disputed by the plaintiff. He says that he accepted the $42 paid him under protest. Under these circumstances, the fact that he signed a receipt in full for all commissions, and defendants’ contention that his commission amounted only to $42, do not preclude him from recovering the sum due him. The verdict is amply sustained by the evidence, and is not contrary to law, and is therefore affirmed, with costs. All concur.