Habrich v. Donohue

64 N.Y.S. 604 | N.Y. App. Div. | 1900

Per Curiam :

The first cause of action set forth in the complaint herein, and the only one that went to the jury, was upon a contract for board and lodging furnished by the plaintiff at the request of the; defendant, to a third party from the 19th day of May, 1896, to the 21st day of December; 1897. The defendant setup as an affirmative defense that he had paid in full all indebtedness of every kind to-the plaintiff arising out of the matter alleged in the first cause of action. On the trial, it. appeared in evidence, on .the plaintiff’s direct examination, that at sometime prior to November 18, 1897 she rendered a bill to the defendant which seems to have been for board and lodging furnished between the seventh day of September and the sixteenth day of November. .On the eighteenth day of November, the defendant wrote to the plaintiff showing errors in the bill thus rendered and inclosing his check, dated November sixteenth, for the amount which appeared by the bill to lie owing-for board and lodging supplied between the dates mentioned in it. He then referred to the fact that further payment would become due on the 1st of January, 1898, and that after that time the plaintiff should not look to him for any further payment. .The check inclosed .in the defendant’s letter was paid and the amount retained by the plaintiff.. It appeared upon her cross-examination that the bill referred to in the defendant’s letter was in fact erroneous. Instead of being for board from September seventh, it should have been from August twenty-sixth, there being a difference of two weeks. The actual controversy between the parties really is reduced to the plaintiff’s right of recovery for the two weeks thus omitted from her bill. Upon the-trial the defendant requested the court to-charge the jury that if the plaintiff received the check of November sixteenth, knowing that the defendant intended it as a payment ■in full, and retained it, then the jury must find that such check paid the bill to that time. The trial judge refused that request upon the ground that it was virtually asking the court to-submit to the jury'a defense of accord and satisfaction, which was not pleaded. An exception was taken to this ruling, of the court.

It is scarcely necessary to cite authorities to the proposition that: an -affirmative defense, such as that of accord and satisfaction, must, be pleaded as new matter. There is nothing in this case to take it out of the ordinary rule of pleading, and the judgment and order must be affirmed, with costs.

Present — Yan Bbunt, P. J., RumsEy, Pattebson, Ing-baham and Hatch, JJ.

. - Judgment and order affirmed,, with costs.