Kelly v. Bullock — 94 N.Y.S. 517

Majority

p. 517

KELLY v. BULLOCK.

(Supreme Court, Appellate Term.

June 22, 1905.)

Headnote

Accobp and Satisfaction—Acceptance of Payment in Full—Effect.

Where, at the time a debtor sent a check tó his creditor in payment of all demands, there was an honest dispute between them as to the amount due, the acceptance and retention of the check by the creditor constituted an accord and satisfaction.

[Ed. Note.—For cases in point, see yol. 1, Cent, Dig. Accord and Satisfaction, §§ 75-83.]

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

Action by Joseph Kelly against Anna F. Bullock. From a judgment for plaintiff, defendant appeals.

Reversed.

Argued before SCOTT, P. J., and DUGRO and MacLEAN, JJ.

Maxson & Jones, for appellant.

Robert J. Cook, for respondent.

There is no room for doubt upon the evidence that, at the time defendant sent the check “for all demands to date,” there was an honest dispute between the parties as to the amount due. The acceptance and retention of the check, therefore, constituted an accord and satisfaction. Simons v. Am. Legion of Honor, 178 N. Y. 265 , 70 N. E. 776 . It is not material whether defendant’s objections to the claim were well founded, although they may have been, because the case contains no evidence that the amount claimed by, plaintiff was actually due to him.

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