23 A.D.2d 833 | N.Y. App. Div. | 1965
Order, entered December 16, 1964, herein appealed from, which denied plaintiff’s motion for summary judgment, unanimously reversed, on the law, with $30 costs and disbursements to the appellant, and the motion granted, with $10 costs. In this action on a promissory note against the maker and guarantors thereof, the defendants’ contention that there was an accord and satisfaction is not supported by the record. The defendants undertook to do only that which they were bound to do, and the acceptance of the legal rate of interest after the maturity of the note, rather than the 5% called for by the note, adds nothing to that simple fact (Boberg v. Evyan, Ine., 7 Mise 2d 851, 857 et seq., affd. 11 A D 2d 933), nor is a mere forbearance to collect a waiver. The defendants’ allegation of an agreement whereby defendants undertook to pay $100 per month “more or less regularly” is so vague and indefinite as to be virtually meaningless. Nor does the bank interoffice memo singly or even in conjunction with the notations on the checks constitute the required writing or establish an executory accord under section 15-501 of the General Obligations Law. Concur — Botein, P. J., Valente, McNally, Stevens and Eager, JJ.
