McCormick v. Shea

Appellate Terms of the Supreme Court of New York

McCormick v. Shea

47 Misc. 613, 94 N.Y.S. 485

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1905

StatusPublished

Cited by1 cases

This text of 47 Misc. 613 (McCormick v. Shea) 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

McCormick v. Shea, 47 Misc. 613, 94 N.Y.S. 485 (N.Y. Ct. App. 1905).

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Opinions

MacLean, J.

The plaintiff’s action was upon a promissory note indorsed by the defendant, who alleges separately that the indorsement was canceled pursuant to a compromise and as an incident to an agreement of accord and satisfaction. The note was taken as security for some transaction between the plaintiff and the defendant’s husband. The indorsement was crossed out after delivery of the note to the plaintiff, at his office before maturity and over a year before the commencement of this action. The crossing out was done by the defendant’s attorney on the occasion of giving the plaintiff a check claimed by the plaintiff to be payment upon another note, claimed by the defendant to be payment under an agreement between the parties in settlement of all differ[614]*614enees betwceen them. .In the conflict of evidence respecting both defenses, the finding of the jury would be controlling save for two exceptions to charges by the learned court upon request. The payment already mentioned was the amount of a note made by the defendant to the plaintiff less the sum of $85. Whether this deduction was arrived at by the plaintiff’s allowing the amount of a claim on the sale of an ambulance or by the defendant’s waiving a part of her claim on the ambulance in consideration of the cancellation of her indorsement and the settlement of all differences was an open question on the evidence. In view of this the charge that “the defendant was already liable on the note of $525 as the maker thereof, and that the payment of the sum on account thereof was no consideration for the cancellation of her indorsement of the note in suit,” although literally correct if taken alone, was close to misleading. The question at issue was begged however in the charge “ on the question of accord and satisfaction, there was no accord and satisfaction because the plaintiff’s claim on the note of $525 was fixed and liquidated at the time of the acceptance by him under protest of the sum of $448.25,” with its continuance “ that there was no accord and satisfaction unless there was a genuine bona fide dispute between the parties' about the amount claimed to be due, depending upon contingencies or something uncertain.” Evidence of dispute and difference as to the respective obligations of the parties and of their adjustment and satisfaction there was. What was its worth or worthlessness was for the jury and not for the court to determine. The judgment should be reversed.

Duqbo, J., concurs.

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MacLean, J.

The plaintiff’s action was upon a promissory note indorsed by the defendant, who alleges separately that the indorsement was canceled pursuant to a compromise and as an incident to an agreement of accord and satisfaction. The note was taken as security for some transaction between the plaintiff and the defendant’s husband. The indorsement was crossed out after delivery of the note to the plaintiff, at his office before maturity and over a year before the commencement of this action. The crossing out was done by the defendant’s attorney on the occasion of giving the plaintiff a check claimed by the plaintiff to be payment upon another note, claimed by the defendant to be payment under an agreement between the parties in settlement of all differ[614]*614enees betwceen them. .In the conflict of evidence respecting both defenses, the finding of the jury would be controlling save for two exceptions to charges by the learned court upon request. The payment already mentioned was the amount of a note made by the defendant to the plaintiff less the sum of $85. Whether this deduction was arrived at by the plaintiff’s allowing the amount of a claim on the sale of an ambulance or by the defendant’s waiving a part of her claim on the ambulance in consideration of the cancellation of her indorsement and the settlement of all differences was an open question on the evidence. In view of this the charge that “the defendant was already liable on the note of $525 as the maker thereof, and that the payment of the sum on account thereof was no consideration for the cancellation of her indorsement of the note in suit,” although literally correct if taken alone, was close to misleading. The question at issue was begged however in the charge “ on the question of accord and satisfaction, there was no accord and satisfaction because the plaintiff’s claim on the note of $525 was fixed and liquidated at the time of the acceptance by him under protest of the sum of $448.25,” with its continuance “ that there was no accord and satisfaction unless there was a genuine bona fide dispute between the parties' about the amount claimed to be due, depending upon contingencies or something uncertain.” Evidence of dispute and difference as to the respective obligations of the parties and of their adjustment and satisfaction there was. What was its worth or worthlessness was for the jury and not for the court to determine. The judgment should be reversed.

Duqbo, J., concurs.

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Bluebook (online)

47 Misc. 613, 94 N.Y.S. 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormick-v-shea-nyappterm-1905.

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