Majority
p. 872(37 Misc. Rep. 163.) EVERS et al. v. OSTHEIMER. (Supreme Court, Trial Term, Kings County. February, 1902.)
Headnote
Accord and Satisfaction.A receipt, made by judgment plaintiff, acknowledging payment made in’full of all claims to date, is insufficient to discharge the judgment, where the amount paid was less than the judgment.
Action by John H. Evers and others against Louis G. Ostheimer on a judgment for $263.11 entered in 1885. Motion by both sides to move for a direction of verdict reserved at defendant’s request. Verdict directed for plaintiffs.
The defendant pleaded payment, and gave in evidence a receipt made March 2, 1894, by one of the plaintiffs for $75 from the defendant “in full of all claims to date,” and a like receipt made on the same day by
p. 873
the other plaintiff for $25 “to satisfy my part of judgment” (describing it). The defendant testified that these were the only payments made on the judgment.
Herman H. Baker, for plaintiffs.
George M. Osgoodby, for defendant.
It is elementary that the payment of part does not satisfy the whole of a liquidated debt, although offered, accepted and receipted for in full. Ryan v. Ward, 48 N. Y. 204 , 8 Am. Rep. 539 .
A verdict is directed for the plaintiffs.
Cases cited
- Ryan v. Ward 48 N. Y. 204 p. 873