Smith v. Quayle

258 A.D. 769, 14 N.Y.S.2d 741, 1939 N.Y. App. Div. LEXIS 6811

Opinion

Appeal from a judgment of the Supreme Court, entered in the Columbia county clerk’s office on April 14, 1926, on the verdict of a jury in favor of the plaintiff and against the defendant for seventy-two dollars, together with costs, and from an order denying the motion to set aside the verdict and for a new trial. Plaintiff was a doctor of veterinary medicine and sued to recover for services rendered in the care of some pedigreed Airdale terriers owned by the defendant. Defendant counterclaimed alleging that the services had been improperly rendered. ■The trial presented a sharp issue of fact especially as to alleged mistreatment of the dogs by the plaintiff. It was not denied that the plaintiff had actually treated the dogs. The proof showed that shortly after the rendition of the services the defendant had mailed to the plaintiff a check for the amount of plaintiff's bill bearing the statement “ mistreatment of dogs in full to-date.” Plaintiff retained the check but never cashed it. Defendant contends that this cheek was both payment in full and also a legal tender. The trial court asked the jury to find separately on the claims of the respective parties and charged that as to the plaintiff’s cause of action it must find a verdict in favor of the plaintiff for some amount because it was undisputed that some services were properly rendered. Judgment and order unanimously affirmed, with costs. Present — Hill, P. J., Crapser, Bliss, Sehenek and Foster, JJ.