H. Muehlstein & Co. v. Airway Cleaners & Dyers, Inc.

Appellate Terms of the Supreme Court of New York

H. Muehlstein & Co. v. Airway Cleaners & Dyers, Inc.

17 Misc. 2d 941, 186 N.Y.S.2d 974, 1959 N.Y. Misc. LEXIS 4004

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 2, 1959

StatusPublished

Cited by1 cases

This text of 17 Misc. 2d 941 (H. Muehlstein & Co. v. Airway Cleaners & Dyers, Inc.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

H. Muehlstein & Co. v. Airway Cleaners & Dyers, Inc., 17 Misc. 2d 941, 186 N.Y.S.2d 974, 1959 N.Y. Misc. LEXIS 4004 (N.Y. Ct. App. 1959).

Pincite

Opinion

Per Curiam.

The judgment and order should be affirmed, with costs, but as we arrive at our conclusion on somewhat different grounds than that expressed by the court below the following brief statement is made. The only issue is the validity of the defense of accord and satisfaction. As the accord pleaded was executory it required either a writing or consideration. There was ño writing. The consideration claimed was the settlement of a bona fide dispute as to the quality of the goods delivered. [942]*942If there was such a dispute, the consideration would be ample. But there was none. The sales orders contained a term that claims must be made in 30 days. None was made within that period. It is true that an unreasonable provision for examination and claim will not be given effect (Jessel v. Lockwood Textile Corp., 276 App. Div. 378). This provision was reasonable. Without a dispute there was no consideration, and without consideration or writing there was no enforcible accord (Personal Property Law, § 33, subd. 2).

Concur — Steueb, J. P., Hoestadteb and Hecht, JJ.

Judgment and order affirmed, etc.

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Per Curiam.

The judgment and order should be affirmed, with costs, but as we arrive at our conclusion on somewhat different grounds than that expressed by the court below the following brief statement is made. The only issue is the validity of the defense of accord and satisfaction. As the accord pleaded was executory it required either a writing or consideration. There was ño writing. The consideration claimed was the settlement of a bona fide dispute as to the quality of the goods delivered. [942]*942If there was such a dispute, the consideration would be ample. But there was none. The sales orders contained a term that claims must be made in 30 days. None was made within that period. It is true that an unreasonable provision for examination and claim will not be given effect (Jessel v. Lockwood Textile Corp., 276 App. Div. 378). This provision was reasonable. Without a dispute there was no consideration, and without consideration or writing there was no enforcible accord (Personal Property Law, § 33, subd. 2).

Concur — Steueb, J. P., Hoestadteb and Hecht, JJ.

Judgment and order affirmed, etc.

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Bluebook (online)

17 Misc. 2d 941, 186 N.Y.S.2d 974, 1959 N.Y. Misc. LEXIS 4004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-muehlstein-co-v-airway-cleaners-dyers-inc-nyappterm-1959.

Opinion

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