Brown v. Symes — 64 N.Y. St. Rep. 266

Majority

p. 266

Mortimer S. Brown, App’lt, v. James H. Symes, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 10, 1894.)

Headnote

Accord and satisfaction—Part payment.

The acceptance of a check for part of the amount, which was sent in “full settlement ” of a disputed claim, and the collection and retention of the money, constitute an accord and satisfaction of such claim;

Appeal from a judgment, dismissing the complaint.

Theodore B. Gates, for app’lt; Smith & White (Albridge C. Smith, of counsel), for resp’t.

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 hé'sáid," 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 reads 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 %„ 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 N. ■Y. 231; 52 St Rep. 342 . 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.