Levi Cotton Mills Co. v. Fried

102 N.Y.S. 802

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 11, 1907
• Status: Published

Opinion

AMEND, J.

The plaintiff appeals from a judgment in favor of the defendant. The plaintiff in 1901 employed the defendant to bring a suit in the United States Circuit Court, and the defendant collected in that suit after an appeal, and in 1904 turned over the proceeds to the plaintiff, less the amount retained by him for his fees and disbursements. The defendant deducted 25 per cent., claiming a specific contingent agreement for that amount to cover services including the trial and $500 for services in the Circuit Court of Appeals. Some controversy arose as to the $500 charge,, and in July, 1904, the defendant, or his then firm, paid to the plaintiff $335 in a check for that amount to its order, which was indorsed in full of all demands. The plaintiff in this action sued to recover $389.80, which included $375, the balance of $500 charge, less $335 paid as above, and certain other amounts, alleged overcharges for disbursements, costs, etc. The pleadings were oral, and the defense was a general denial, accord and satisfaction, estoppel, and payment. At the commencement of this trial the defendant’s counsel made the following concession:

“That the plaintiff is entitled to recover against the defendant the sum of $43.41, the concession being made upon the express condition that it is without prejudice to the defendant's right to rely with fuil force and virtue upon the defense of accord and satisfaction, which has been pleaded, and the concession is accepted by the plaintiff upon that condition.”

The court found in favor of the defendant. I think the finding was justified, upon the proofs in the case, so far as the general controversy between the parties was concerned, but that the defense of accord and satisfaction was good only as to the $500 fee, and the plaintiff was entitled to recover the sum of $43.41, which the defendant conceded was due.

The judgment, therefore, should be modified, by directing judgment in favor of the plaintiff against the defendant for $43.41, and, as so modified, affirmed, without costs. All concur.