H. Muehlstein & Co. v. Airway Cleaners & Dyers, Inc.

| N.Y. App. Term. | Apr 2, 1959

Per Curiam.

The judgment and order should be affirmed, with costs, but as we arrive at our conclusion on somewhat different grounds than that expressed by the court below the following brief statement is made. The only issue is the validity of the defense of accord and satisfaction. As the accord pleaded was executory it required either a writing or consideration. There was ño writing. The consideration claimed was the settlement of a bona fide dispute as to the quality of the goods delivered. If there was such a dispute, the consideration would be ample. But there was none. The sales orders contained a term that claims must be made in 30 days. None was made within that period. It is true that an unreasonable provision for examination and claim will not be given effect (Jessel v. Lockwood Textile Corp., 276 App. Div. 378). This provision was reasonable. Without a dispute there was no consideration, and without consideration or writing there was no enforcible accord (Personal Property Law, § 33, subd. 2).

Concur — Steueb, J. P., Hoestadteb and Hecht, JJ.

Judgment and order affirmed, etc.