
    William Manfredi Construction Corp., Respondent, v Green Fan Company, a Division of Ecolaire, Appellant.
   — In an action, inter alia, to recover the balance due under a construction contract, defendant appeals from so much of an order of the Supreme Court (Marasco, J.), dated March 26,1981, and entered in Dutchess County, as denied its motion for summary judgment dismissing the first, second and third causes of action. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, defendant’s motion for summary judgment as to the first, second and third causes of action is granted, and defendant’s counterclaims are severed and continued. On this record, it is clear that plaintiff’s causes of action for recovery of moneys allegedly due under the construction contract are barred by an accord and satisfaction. This accord and satisfaction was created when plaintiff cashed defendant’s check for a lesser amount than plaintiff claims was due. The check was accompanied by a covering letter from defendant conditioning it upon its being “final payment to satisfy all charges” and clearly indicating that liquidated delay damages had been deducted from the contract price. That plaintiff indorsed the check “Payment in Protest” avails it nothing since it could not at the same time accept the money and reject the condition (see Hirsch v Berger Import & Mfg. Corp., 67 AD2d 30, app dsmd 47 NY2d 1008; Welbourne & Purdy v Mahon, 54 AD2d 1046; Carlton Credit Corp. v Atlantic Refining Co., 12 AD2d 613, affd 10 NY2d 723). Damiani, J. P., Mangano, Gibbons and Niehoff, JJ., concur.  