
    Grossman Brothers & Rosenbaum, Appellant, v. Moses H. Phillips, Isaac L. Phillips, Max Phillips, David F. Phillips and Abraham Phillips, Copartners Doing Business as Phillips-Jones Company, Respondents.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Accord and satisfaction — what constitutes—action for extra work in connection with written contract — acceptance of check in settlement.
    Where, in an action to recover for extra work done in connection with a written contract, it appears that defendants sent to plaintiff a check for the balance of the contract price and marked thereon that it was in full for all work done in the building, but plaintiff would not accept it in settlement, and it was not deposited until defendants "agreed to adjust the claim for extra work, there was not an accord and satisfaction.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of the Bronx, second district, in favor of defendants, entered after a trial by a judge without a jury.
    
      Samuel B. Pollak, for appellant.
    H. I. & L. Cohen, for respondents.
   Bijur, J.

This action is brought to recover for two items of extra work done in connection with a written contract for the installation of certain stairways on defendants’ premises.

The defenses are in substance, accord and satisfaction and a claim that the items claimed as extra work were included in the contract between the parties.

It is evident that there was no accord and satisfaction, because, although defendants sent a check for the balance of the contract price to plaintiff and marked thereon that it was in full for all work done in the building in question, plaintiff showed that he did not deposit this check until he had had a conversation with defendants’ representative to the effect in substance that he would not accept it in settlement but only on condition that defendants would thereafter take up the adjustment of the claim. The correspondence between the parties fully confirms this version and indicates independently of such confirmation that the defendants, more than two weeks after the deposit of the check, did not regard plaintiff’s claim as having been settled thereby. See Harby v. Henes, 45 Misc. Rep. 366; Eanus V. B. Co. v. Prosser, 157 N. Y. 289; Komp v. Raymond, 175 id. 102; Simons v. Supreme Council, 178 id. 263-269; Laroe v. Sugar Loaf Dairy Co., 180 id. 367.

Defendants admitted on the trial that the items of extra work were not included in the written contract, but claimed that they were included in the alleged actual contract between the parties owing to conversations that preceded the making of the written contract. The introduction of the evidence as to these conversations was duly objected to by plaintiff’s counsel, and the same should have been excluded. In any event, the subsequent written contract governs. Morowski v, Rohrig, 4 Misc. Rep. 167,169.

Seabury and Guy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  