261 A.D. 529 | N.Y. App. Div. | 1941
The plaintiff corporation installed a machine in the defendants’ premises for experimental purposes in December,
“ This confirms my conversation with you yesterday afternoon wherein it was agreed that all claims by and against James F. Walsh Paper Corporation, Mr. James F. Walsh, Crystalcote Corporation and Mr. Boudinot Atterbury are settled and disposed of as follows:
“1. My clients are to be given access to, and are to remove, the machine previously erected by Crystalcote and now standing on the premises of your clients, including other equipment belonging to my clients.
“ 2. Provided the foregoing machine and equipment are delivered to Crystalcote in good order and condition, Crystalcote Corporation and Mr. Boudinot Atterbury will pay you the sum of $500.00 within twenty-four hours after final delivery. This money has been deposited with me and is being held in escrow pending performance of this agreement.
“It is understood that in connection with the removal of the machine, either a mechanic from It. Hoe & Co., Inc. or Mr. Atterbury may be personally present to assist therein, and that the removal from the premises shall be deemed an admission that the machine and equipment were delivered to my clients in good order and condition. .
“3. Simultaneously with the payment of $500.00 herein, general releases will be executed and exchanged between Boudinot Atterbury, Crystalcote Corporation and James F. Walsh Paper Corporation and Mr. James F. Walsh individually.”
The terms of the letter were not carried out and the defendants continued to prosecute their action. Plaintiffs then brought the within action setting out the foregoing facts and praying not only for specific performance of the agreement represented by the above letter but also that Walsh be enjoined from prosecuting the prior action against the plaintiffs. On the motion to dismiss herein Special Term has held that the above letter constitutes a superseding contract taking the place of the original contract relating to the installation of the machinery and is enforcible. Defendants have appealed and the question before us is whether this is a superseding contract or an executory accord.
The terms of the letter above quoted were never assented to in writing by the defendants and the attempt to enforce the settlement as an executory accord necessarily falls because the common-law rule as to such a situation applies. As was said by the Court of Appeals in Kromer v. Heim (75 N. Y. 574, 577): “The doctrine which has sometimes been asserted that mutual promises which give a right of action may operate and are good, as an accord and satisfaction of a prior obligation, must, in this State, be taken with the qualification that the intent was to accept the new promise, as a satisfaction of the prior obligation. Where the performance of the new promise was the thing to be received in satisfaction, then, until performance, there is not complete accord; and the original obligation remains in force.”
It is equally impossible to interpret this settlement as a superseding contract. Special Term relies on the authority of Moers v. Moers (229 N. Y. 294). In that case the agreement settled a number of separate differences and controversies between the parties, including a pending action by the defendant against the plaintiff. It was an agreement to compromise and adjust the respective claims of the parties in all of these pending matters. It required the payment of money in installments during the entire life of the defendant, the reassignment of certain insurance policies upon his life and the indorsement of a check payable to the parties jointly, as well as the signature on a letter retracting derogatory statements made by the defendant against the plaintiff, and the return by the defendant of a last will and testament executed by him, the return of all of his books, papers and documents, such as old checks and letters, and other property, as well as agreements on the part of the defendant at no time to engage in speculation of any kind. It also involved the exchange of general releases and the release of the claim held by an estate against the plaintiff. In short, it was a comprehensive settlement of all the differences existing between a man and his wife and the adjustment of their present and future obligations to each other. It might well have been called a superseding contract.
In the case at bar similarly all that is involved is a settlement agreement and the settlement of a single item, namely, the pending law suit to recover rent and supplies furnished during the period the machine was at the defendant’s factory. The arrangement sought to be enforced here is in legal effect nothing but an executory accord and cannot^be interpreted as a superseding contract. Any other conclusion would tend to nullify the plain legislative purpose of section 33-a of the Personal Property Law.
The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion granted.
Martin, P. J., O’Malley, Untermyer and Dore, JJ., concur.
Order unanimously reversed, with twenty dollars costs and disbursements, and the motion granted.