Brown v. Symes

31 N.Y.S. 629, 90 N.Y. Sup. Ct. 159, 64 N.Y. St. Rep. 266

• Court: New York Supreme Court
• Decided: December 10, 1894
• Status: Published

Opinion

DYKMAN, J.

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 , 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.