Wilkesbarre Realty Co. v. Atkins

Appellate Terms of the Supreme Court of New York

Wilkesbarre Realty Co. v. Atkins

142 N.Y.S. 324

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 17, 1913

StatusPublished

This text of 142 N.Y.S. 324 (Wilkesbarre Realty Co. v. Atkins) 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

Wilkesbarre Realty Co. v. Atkins, 142 N.Y.S. 324 (N.Y. Ct. App. 1913).

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Opinion

BIJUR, J.

This action was brought to recover the rent of an apartment for the month of October, 1912. The defense consisted of the plea of accord and satisfaction, as well as of a counterclaim for failure to furnish an adequate supply of cold water.

[ 1 ] Of the counterclaim it may be said at once that the proof was insufficient to establish a claim for any definite amount, and the evidence thereof should have been stricken out as defendant requested.

[2] As to the accord and satisfaction: The October rent, $70, was payable on the first Friday of the month. On the 30th day he sent to the plaintiff’s agents a check for the month’s rent, deducting $50 as a counterclaim for six weeks’ failure of cold water supply, and added:

“If this statement is not satisfactory, you will kindly return my check at once.”

Plaintiff’s agents made no reply until they had been able to consult plaintiff’s president, who was out of town, and also an employé of their own, who had knowledge of the matter of the water supply. On December 4th they so wrote the defendant, and told him that his proposition was not accepted, and endeavored within the week to return the check, which, however, defendant and his counsel declined to accept. The check in the meantime had been neither indorsed nor deposited. This did not constitute an accord and satisfaction, as held in a case almost on all fours, namely, Patten v. Uynett, 133 App. Div. 746, 118 N. Y. Supp. 185.

[3] Defendant seeks also to establish an accord by virtue of its letter of December 3d, reading:

“Inclosed herewith is my check for §70, being in full settlement of the rent of my apartment to December 31, 1912.”

The check therein inclosed was accepted and deposited. It is quite evident, however, that defendant did, and was entitled to, understand this letter as referring only to the December rent, the amount of which was undisputed.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

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BIJUR, J.

This action was brought to recover the rent of an apartment for the month of October, 1912. The defense consisted of the plea of accord and satisfaction, as well as of a counterclaim for failure to furnish an adequate supply of cold water.

[ 1 ] Of the counterclaim it may be said at once that the proof was insufficient to establish a claim for any definite amount, and the evidence thereof should have been stricken out as defendant requested.

[2] As to the accord and satisfaction: The October rent, $70, was payable on the first Friday of the month. On the 30th day he sent to the plaintiff’s agents a check for the month’s rent, deducting $50 as a counterclaim for six weeks’ failure of cold water supply, and added:

“If this statement is not satisfactory, you will kindly return my check at once.”

Plaintiff’s agents made no reply until they had been able to consult plaintiff’s president, who was out of town, and also an employé of their own, who had knowledge of the matter of the water supply. On December 4th they so wrote the defendant, and told him that his proposition was not accepted, and endeavored within the week to return the check, which, however, defendant and his counsel declined to accept. The check in the meantime had been neither indorsed nor deposited. This did not constitute an accord and satisfaction, as held in a case almost on all fours, namely, Patten v. Uynett, 133 App. Div. 746, 118 N. Y. Supp. 185.

[3] Defendant seeks also to establish an accord by virtue of its letter of December 3d, reading:

“Inclosed herewith is my check for §70, being in full settlement of the rent of my apartment to December 31, 1912.”

The check therein inclosed was accepted and deposited. It is quite evident, however, that defendant did, and was entitled to, understand this letter as referring only to the December rent, the amount of which was undisputed.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

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142 N.Y.S. 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkesbarre-realty-co-v-atkins-nyappterm-1913.

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