Conway v. Barber — 58 N.Y. St. Rep. 12

Majority

p. 12

Frederick Conway, Resp’t, v. Charles G. Barber, et al., App’lts.

(New York City Court, General Term,

Filed January 18, 1894.)

Headnote

Compromise—Payment under protest.

A receipt in full, under protest, on payment of a sum less than is claimed to be due, does not estop from recovering amount actually due.

Appeal from a judgment in favor of plaintiff.

Hemsen & Parsons, for app’lts; Stewart & Macklin, for resp’t.

The only exception taken is found at folio 86 of the case on appeal. It cannot avail appellant because the conversation objected to was communicated to one of the defendants and he made answer thereto, folio 36, 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 commission and defendant’s contention that his commission amounted only to $42 does 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.

Hewburger and McCarthy, JJ., concur.