
    Meyer Levenson, Appellant, v. The Gillen Publishing Co., Respondent.
    (Supreme Court, Appellate Term,
    February, 1900.)
    ' Accord and satisfaction — Retention of check where there had been no dispute.
    Where no prior dispute has arisen over a contract for work, labor and services rendered to real estate, the mere retention by the contractor, under protest as to its insufficient amount, of a check sent him by the owner “as a very liberal amount on account of your (the contractor’s) very unsatisfactory work ”, cannot effect an accord and satisfaction, as there is no element of assent to a new agreement nor any consideration therefor.
    Appeal from a judgment, in favor of the defendant, rendered in the Municipal Court of the city of New York, fifth district, borough of Manhattan.
    John Bogart, for appellant.
    Jones Cochrane, for respondent.
   Leventbitt, J.

The defendant’s plea of accord and satisfaction was, we think, erroneously allowed below.

The plaintiff had performed work, labor and services, for the defendant, of which the contract price was $204.05. After the services had been rendered the defendant forwarded to the plaintiff a check in a letter, reading, in part: Enclosed please find check for $150 in settlement of yonr bill. I consider same a very liberal amount on account- of your very unsatisfactory work ”. Prior to this time there had not been, so far as appears from the evidence, any complaint or dispute regarding the character of the work, or the amount of the bill. Promptly upon receipt of the check, the plaintiff, retaining it, wrote to the defendant, in part, as follows: “Yours of the 5th inst. was duly received, covering check for $150, which has been credited to your account. I cannot accept the same in full for my bill. * * * I hereby inform you that I shall deliver you no more goods of any kind until I receive a certified check or the cash for the full amount of my balance, viz., $54.05, to settle my bill with you”. This statement of facts shows that there was no accord and satisfaction. The check was not tendered in full satisfaction after a dispute between the parties. There is no element of assent; either express or implied, on the part of the plaintiff, nor is there consideration to support the new agreement which underlies a legal accord. We have recently had occasion in several cases to pass upon the principles determining an accord and satisfaction on similar facts, and it is unnecessary to repeat them here beyond stating that the mere retention of a check under the circumstances disclosed does not bar an action for the balance. Amer v. Folk, 28 Misc. Rep. 511; Kruger v. Geer, 26 id. 772. The judgment must be reversed.

Fbeedman, P. J., concurs.

MacLean, J.

(concurring). I concur on the authority of Eames & Co. v. Prosser, 157 N. Y. 269, 301.

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