68 N.Y.S. 1091 | N.Y. App. Div. | 1901
The plaintiff appeals from a judgment of the Municipal Court in?, favor of the defendants. The action is upon contract to recover thirty dollars. The defendants answered by general denial, and. set up three separate defenses; accord and satisfaction, release, and. payment. Prior to May 19, 1900, the plaintiff sued Meyersohn,, Krakomer (the defendants' in this action) and Mandel, who were; copartners, and also Stein and Ii. Krakomer, in the Supreme
I think that this was error. The thirty dollars was part of the consideration for the release. There was ample consideration for the promise of the defendants to pay it in their release and their consequent discharge from partnership liability. (Luddington v. Bell, 77 N. Y. 138; Waydell v. Luer, 3 Den. 410.) The complication is due to the fact' that the plaintiff, instead of tendering the release with one hand and holding out the other for the entire consideration, trusted the defendants for the payment of the thirty dollars — gave them credit therefor. Upon default by them she was entitled to sue to enforce that payment. (Szymanski v. Chapman, 45 App. Div. 369, 371.) The parol testimony is not objectionable as altering or modifying the release, for it but tended to establish that the full consideration therefor was not paid, and did not affect the force of • the release. The agreement was not completely executed, and, therefore, there was no accord and satisfaction. (Smith v. Cranford, 84 Hun, 318, and authorities cited.)
The judgment must be reversed and a new trial ordered.
All concurred'.
Judgment of the Municipal Court reversed and new trial ordered, coste to abide the event.