Dunn v. Whalen, 105 N.Y.S. 588

Dunn v. Whalen

105 N.Y.S. 588 | N.Y. App. Div. | 1907

McLaughlin, J,:

The respondent on this appeal at one time acted and rendered services for the plaintiff in the above action. She, for some reason, *730not being satisfied, made a motion to substitute another attorney, which was granted and a reference ordered to determine the amount of the former attorney’s claim, the same1 being in dispute. The referee to whom the matter w;as referred reported in favor of the attorney and an order was subsequently entered confirming the report, from which this appeal is taken.

The plaintiff’s husband was a member of the firm .of; Whalen & Dunn, and after - his death she, as his executrix and sole legatee, employed the plaintiff as an attorney to bring this action for an accounting. At the time the action was commenced there was evi--' deuce to the effect that the plaintiff asked the attorney how much lie would charge for his services and $500, was agreed, upon, and if a certain claim were collected $500 ■ more would be paid. This claim was subsequently settled, and thereupon a dispute arose between plaintiff and her attorney as to" whether he was entitled to the second $500. She paid him $250 at the commencement of the action and after the claim had been settled sent him a check for $250 more in á letter of which the following is a copy:

“ Hunt Point, Oetober 16, 1905.

“ 1 enclose herewith -my check for. Two hundred ■ and fifty ($250.00), dollars in full payment for your services in the action of Dunn against Whalen.

. “ Iiindly send or let me know when and where I can obtain the papers which you have in - your .possession, belonging to me, and oblige.

“MARIE T.DUHK”

On the eighteenth of October - the respondent acknowledged receipt of the letter and check in a letter in which he stated it was not, in full payment and would not be accepted by him as such; that he would retain the check for a week and if he did not hear from 'her in the meantime should take it for'granted that she assented to the facts set out in his letter, in which event he would accept the check as a payment on account, and that would leave a balance of $500 due him; The plaintiff did not reply to this letter because ■ shortly before receiving it she learned that it was written after the. attorney had had the check certified by -the trust company' upon which it was drawn. -

*731That there was a genuine dispute between the parties as to the amount of the attorney’s claim cannot well be denied. The respondent insisted, under the contract of employment, that lie was entitled to $750, while the plaintiff insisted that he was only entitled to $250. It is of no importance which party was right (Goodrich v. Sanderson, 35 App. Div. 546), or whether the dispute arose over what the contract of employment was or the construction of it. (Jackson v. Volkening, 81 App. Div. 36; affd., 178 N. Y. 562.) When, therefore, the plaintiff sent to the attorney her check for the amount which she claimed she owed “ in full payment ” of his claim, he either had to accept it upon the condition in which.it was sent or return it (Fuller v. Kemp, 138 N. Y. 231; Nassoiy v. Tomlinson, 148 id. 326); he could not keep it and impose other conditions. There was, therefore, no obligation resting upon the plaintiff to reply to his letter stating that he would retain the check for a week and if he did not hear from her in the meantime would apply it upon account, which lie asserts he subsequently did, on the theory that she, by not replying to his letter,agreed to his statement of facts. But he did not retain it for a week because at the time he wrote the' letter he had in fact used the check' By having it certified. Tile certification of the check operated as a payment of it between him and the plaintiff. The certification of a check at the instance of the owner and holder operates to discharge the drawer from liability and to render the bank liable to the owner and holder. (Meuer v. Phenix National Bank, 94 App. Div. 331; affd., 183 N. Y. 511.) The use of the check, therefore, by the respondent was, ipso facto, an acceptance of the condition imposed by the plaintiff when she sent it to him. The minds of the parties then met so as to constitute an accord and satisfaction, and as was said in Fuller v. Kemp (supra): “ The acceptance of the money involved the acceptance of the condition and the law will not permit any other inference to be drawn, from the transaction.” There is no .dispute about the letter which the plaintiff wrote when she inclosed the check,, and the respondent himself testified before the referee that he had the check certified before he • answered that letter, and for that reason I see- no necessity for sending the matter to another referee.

The order appealed from should be reversed, with ten dollars *732costs and disbursements, the motion to confirm the referee’s report denied, with ten dollars costs, the referee discharged and ■ the respondent directed to turn over to the plaintiff'whatever papers he has in- his possession belonging to her,

■ Ingraham, Clarke, Houghton and Lambert, JJ., concurred.

Order re versed,, with ten dollars costs and'disbursements, motion to confirm report denied, with ten dollars costs, referee discharged and respondent directed to turn over to. plaintiff whatever papers he has in his possession belonging to her.