
    General Fireproof Construction Company, Appellant, v. Herbert B. Butterfield, Respondent.
    Fourth Department,
    March 8, 1911.
    Court — appeal from City Court of Buffalo — dismissal of complaint — attorney and client — accord and satisfaction — restitution of moneys received in part payment.
    The Special Term on reversing a judgment for the plaintiff rendered in the City Court of Buffalo cannot dismiss the complaint, but may only direct a new trial.
    A client by accepting a portion of moneys collected for her by her attorney at law does not make an accord and satisfaction of her claim against him. She need not return the portion received, it being her own money, before bringing action to recover a balance due.
    Appeal by the plaintiff, the General Fireproof Construction Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 29th day of June, 1910, pursuant' to an order made at the Erie Special Term on the 23d day of June, 1910, reversing a judgment of the City Court of Buffalo, and also from the said order upon which the judgment appealed from was entered.
    
      
      Thomas E. Boyd, for the appellant.
    
      Ticknor & Pierce and H. B. Butterfield, for the respondent.
   Williams, J.:

The judgment and order should be reversed and the judgment of the City Court affirmed, with costs in this court and the Special Term.

The action was brought to recover moneys collected by defendant, an attorney for the plaintiff, his client, which he refused to pay over and converted to his own use. The City Court rendered judgment for the plaintiff for the amount claimed, with interest and costs. An appeal was taken to the Supreme Court where the Special Term reversed the judgment and dismissed the complaint, upon the ground (as stated in the opinion) that the evidence showed that there was an accord and satisfaction between the parties. The court cited and relied on Gribble v. Van Praag Supply Co. (124 App. Div. 833).

The Special Term had no power to dismiss the complaint. It could only direct a new trial if it reversed the judgment. (Laws of 1909, chap. 570, § 55.)

The only question of fact passed upon by the Special Term was the accord and satisfaction. Fío attempt was made to review the question as to defendant’s liability in the absence of such accord and satisfaction. We are not inclined to differ with the City Court as to such liability. It saw and heard the witnesses, and its determination of that question should not be disturbed. We come directly to the question upon which the reversal -by the Special Term was placed, the accord and satisfaction. The money collected by the defendant belonged to the plaintiff. The defendant at most had a lien upon it for his services, and could retain what he was legally entitled to for such services. When the defendant sent the check for a part of the money, he limited his right to compensation to the amount retained by him and conceded that the amount sent belonged to the plaintiff. Under these circumstances the plaintiff was not bound to return its own money to defendant, under penalty of acknowledging defendant’s right to the balance retained. Plaintiff had a right to retain the money paid to it and sue for and recover any portion of the balance to which it was entitled. It was not a case for the application of the rule of accord and satisfaction. It would not he quite fair for the defendant to say I send you an amount which I concede is yours; but if you take it you must acknowledge you are not entitled to any part of the moneys I have retained. (Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289, 301.) In that case, as in this one, the moneys collected belonged to the plaintiff, subject to any legal claims of defendant for commissions existing, and the court held the plaintiff was not bound to return the moneys actually paid over or be precluded from recovering any of the balance under the rule of accord and satisfaction.

The distinction between the GriSble and other like cases and the Prosser case and this one is that claims were made in the former case for moneys due under contracts. The parties disagreed as to the amount to which the plaintiffs were entitled. The defendants sent checks for certain amounts, to be accepted, if at' all, in full pajrment and satisfaction of their claims. The checks were retained and suits afterwards brought to recover the balances claimed. There was no question, as in the latter cases, of title to the moneys sent. The rule of accord and satisfaction was improperly applied in view of the Prosser case.

All concurred; Spring, J., not sitting.

Judgment of Special Term reversed and judgment of City Court affirmed, with costs in this court and in Special Term to appellant.  