Kirschbaum v. Dauman

261 A.D. 998, 26 N.Y.S.2d 646, 1941 N.Y. App. Div. LEXIS 8497

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1941
• Status: Published

Opinion

In an action brought to recover a sum of money alleged to be due and payable under a contract of employment, order granting defendant’s motion for summary judgment dismissing the amended complaint, and judgment entered thereon, unanimously affirmed, with ten dollars costs and disbursements. The documents submitted by the defendant uniformly establish the defense of an accord and satisfaction. Plaintiff’s version of the settlement is unsupported by anything contained in the documents, or by any evidence except the plaintiff’s oral assertions. The failure to produce the affidavit of the accountant Gottlieb indicates that the plaintiff’s account of the transaction cannot be supported by proof. Our decision on the previous appeal (260 App. Div. 1044), in which we affirmed an order denying defendant’s motion to vacate a warrant of attachment, did not involve a consideration of the merits except to the extent of determining, on the record then before us, that the plaintiff’s papers might not be hopelessly bad. (Jones v. Hygienic Soap Granulator Co., 110 App. Div. 331.) Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.