73 A.D.2d 988 | N.Y. App. Div. | 1980
— Cross appeals from an order of the Supreme Court at Special Term, entered December 8, 1978 in Tompkins County, which dismissed plaintiff’s complaint and defendant’s counterclaim. Defendant is the publisher of Beauty Fashion magazine, and in May of 1977 it hired plaintiff, a commercial printer, to perform various printing services with respect to the publication of the magazine. Plaintiff subsequently performed these services and sought payment therefor from defendant in the sum of $14,184.85. It had apparently transpired, however, that defendant had suffered a loss of $21,322.81 in advertising revenues, and it attributed these losses, at least in part, to plaintiff’s shoddy workmanship and tardy deliveries. Consequently, in a letter to plaintiff dated September 7, 1977, it indicated that it was taking, as a credit against the amount it allegedly owed to plaintiff, 30% of the advertising losses, i.e., $6,396.84, and with the letter it tendered as full payment for plaintiff’s services a check in the amount of $7,788.01, i.e., $14,184.85 less $6,396.84. Inscribed on the check was the statement "By endorsement this check when paid is accepted in full payment of the following account as per letter 9-7-77. If incorrect please return. No receipt necessary.” Thereafter, upon the advice of its attorney, plaintiff crossed out the quoted statement, cashed the check and commenced this action to recover the balance of the $14,184.85 still allegedly remaining due. Special Term denied its motion for summary judgment and dismissed the complaint on the ground that there had been an accord and satisfaction which barred plaintiff’s recovery. As for defendant’s counterclaim that it was entitled to recovery of the $7,788.01 which it had paid plaintiff because, pursuant to section 3-407 (subd [2], par [a]) of the Uniform Commercial Code, plaintiff’s fraudulent alteration of the tendered check served to extinguish the underlying obligation, defendant’s motion for summary judgment thereon was denied and the counterclaim was dismissed. Both parties now appeal. Considering initially the dismissal of the complaint, we hold that it should be affirmed. In this instance we are presented with a disagreement between the parties as to which of two sums is properly due from defendant to plaintiff for services rendered, and defendant sought to
