117 N.Y.S. 407 | N.Y. App. Div. | 1909
The plaintiff appeals from -an- interlocutory judgment overruling a demurrer to a separate defense.
It will be observed that the compromise agreement as alleged is that it was agreed that in compromise of plaintiff’s claim defendant should pay certain sums in the future. That is to say, the payment of the sums agreed upon should constitute the completed compromise. This does not allege an accord # and satisfaction, but merely an accord without satisfaction under which the original promise remains in force. A very similar attempt at an accord came before the Court of Appeals in Kromer v. Heim (75 N. Y. 574). In that case plaintiff had recovered a judgment against the defendant for upwards of $4,000. Pending a stay a stipulation was entered into under which plaintiff agreed to accept in settlement of the judgment $1,000 in cash, $250 down and the balance in installments, with merchandise to be delivered in amounts stated, sufficient with the cash payments to reduce the judgment to $1,000, and an assignment of certain patents. Defendant made the cash payments and delivered the merchandise as. stipulated until the judgment was
“ The doctrine which lias sometimes been asserted, that mutual promises which give a right of action, may operate and áre good, as an accord and satisfaction of a prior obligation, must, in this State, be taken With the qualification that tlie: 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 a complete accord; and the original obligation remains in force. (Russell v. Lytle, 6 Wend. 390 ; Daniels v. Hallenbeck, 19 id. 408 ; Hawley v. Foote, Id. 516 ; The Brooklyn Bank v. De Grauw, 23 id. 342; Tilton T. Alcott, 16 Barb. 598.) * * ' *
“ The; judgment clearly was to remain in force, until the satisfaction under, the new agreement was complete. It is;the case of an accord partly executed. So far ás the plaintiff accepted performance his claim was extinguished. So far as it was- unexecuted the judgment remained in full force; and however indefensible in morals, it may be' for the plaintiff to refuse to abide by the agreement in respect to the patent interests, lie was under no legal obligation to accept' the assignment tendered, and he had the legal .right to enforce the judgment for the balance remaining unpaid.”
The judgment appealed from must be reversed and the demurrer sustained, with costs in this court and the court below, with leave to defendant to amend his answer within twenty days upon the payment of .said costs.
Ingraham, McLaughlin, Clarke and IJoughton, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs.