Brown v. Symes — 31 N.Y.S. 629

Majority

p. 629

BROWN v. SYMES.

(Supreme Court, General Term, Second Department.

December 10, 1894.)

Headnote

Accord and Satisfaction—Acceptance of Part Payment.

Defendant contended that a claim made against him by plaintiff had been paid, but he finally sent plaintiff a check for part of the amount, stating therein that it was in “full settlement” of the claim, and at the same time wrote plaintiff that he sent the check because he could not spare the time to hunt up proofs of payment, and that he would “expect in return a receipt in full.” Plaintiff retained the check, and sued on the balance of his claim. Held, that the acceptance and collection of the check was an accord and satisfaction.

Appeal from circuit court, Kings county.

Action by Mortimer S. Brown against James H. Symes to recover a balance alleged to be due on a loan by plaintiff to defendant. The complaint was dismissed, and plaintiff appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.

Theodore B. Gates, for appellant.

Smith & White (Albridge C. Smith, of counsel), for respondent

This is an appeal from a judgment entered upon a dismissal of the complaint upon the trial at the circuit. It appeared from the testimony introduced by the plaintiff upon the trial that the plaintiff made a claim against the defendant for $110, for money loaned. The claim was disputed by the defendant, who insisted that he had paid the loan. Finally the defendant wrote a letter to the plaintiff, in which he said, among other things:

“I do not concede, however, that this claim is a just one; but rather than devote my time, which I cannot spare at present, to tracing up the proofs, I have decided to send you inclosed check for $110, and will expect in return a receipt in full.”

The check read as follows:

“Guttenberg, Hudson Co., July 6, 1893.

“First National Bank of Hoboken, New Jersey: Pay to order of M. S. Brown, as full settlement of claim against me, one hundred and ten 00/100 dollars.

“$110. James H. Symes.”

The plaintiff retained the check, collected the money upon it, and then brought this suit.

The acceptance of the check under the circumstances stated, and the collection and retention of the money, constituted an accord and satisfaction of the plaintiff’s claim. Fuller v. Kemp, 138

p. 630

N. Y. 231 , 33 N. E. 1034 . As the judgment must be affirmed upon the ground stated, we do not examine the other questions presented by the appellant. The judgment should be affirmed with costs. All concur.