
    Marcus M. Mintzer and Eva Schenkein, Plaintiffs, v. The Supreme Council, American Legion of Honor, Defendant.
    (Supreme Court, Kings Special Term,
    October, 1903.)
    Payment — Accord and satisfaction.
    A debt may be extinguished by payment in full, by acceptance of something agreed upon in satisfaction, by release under seal, by voluntary destruction of the written evidence of the debt, and by delivery of such written evidence to the debtor with intent to forgive him the debt — this latter method operating as an executed gift.
    Accord and satisfaction involve the receipt of something in ' satisfaction of the debt and where the creditor has received nothing beyond what was- admitted to be due from the debtor there can be no accord and satisfaction available to the latter as a defense.
    Demurrer to complaint. Action to recover a balance due upon a benefit certificate. The complaint alleged that the defendant had only paid part of the amount due under an illegal by-laiv reducing the face valúe and that the benefit certificate had been delivered to the defendant under the mistaken belief that the amount paid was the only sum due, and that nothing had been paid in satisfaction of the claim for excess over the by-law. The relief sought was the fedelivery of the certificate to the plaintiffs and assessment of their damages for breach of contract at the unpaid balance.
    Maurice Hagler (Laurence G. Goodhart, of counsel), for plaintiffs.
    Henry A. Powell, for defendant.
   Marean, J.

The question in this case is not whether relief from the effectual extinguishment of the debt under a mistake of law can be afforded, but whether the acts done have effectually extinguished the debt.

There are five ways in which a debt may be extinguished : First, by actual payment in full; second, by acceptance of something agreed upon in satisfaction, known as accord and satisfaction; third, by release under seal; fourth, by voluntary destruction of the written evidence of the debt, and fifth, by a delivery of such written evidence to the debtor with intent to forgive him the debt, operating as an executed gift.

There has been no payment in full; no release under seal; no voluntary destruction of the written evidence, and it must be conceded that the certificate was surrendered to the defendant "with no purpose to consummate a gift. The whole question is whether there has been an accord and satisfaction. If this case cannot be distinguished in principle from Nassoiy v. Tomlinson, 148 N. Y. 326, then the plaintiffs must fail. Of course, practically, there was but one claim;' two suits could not have been maintained, one for the two thousand dollars ($2,000), and a second for the remaining three thousand dollars ($3,000) ; but logically, and for all the purposes of any dispute of liability, there were two distinct claims, one admitted and the other disputed, each depending on its own peculiar facts. The defendant had, itself, cut the obligation in two. The two claims were as distinct in the contemplation of both parties as though there had been two certificates, one for $2,000, on which liability for that sum was admitted, and the other for $3,000, which the defendant had undertaken to repudiate.

Accord and satisfaction involve the receipt of something in satisfaction, and not a penny and not a thing was received beyond what was required to satisfy the admitted claim.

In the case cited, which was an action for commissions at five per cent on a thirty thousand ($30,0001 dollars’ sale, the defendant denied any agreement to pay five per cent, and claimed that he was to pay only what he thought was right. The whole claim depended on the same facts, and every fibre and atom of it was unliquidated and in dispute, and had the defendant refused to pay anything the plaintiff might have recovered less than the three hundred ($300) dollars he had received. Therefore there was in the payment of the three hundred ($300) dollars something yielded by the defendant beyond what he was certainly liable for, which furnishes the necessary something to work a satisfaction of the rest. In the case at bar that element is entirely wanting and in my opinion the claim for the three thousand ($3,000) dollars not paid has never been extinguished.

The demurrer is overruled.

Demurrer overruled.  