
    Louis Rauh, Respondent, v. Abraham Wolf et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Accord and satisfaction — Payment of sum less than due — Checks and drafts.
    Where defendants calculated the amount due plaintiff for services up to October 1st and sent him a check for that sum which stated on its face that it was “ in full of account,” and plaintiff’s letter in reply stated that he retained the check as payment in full of account up to October 1st, but not in full payment “ of your obligations under our agreement,” and expressed a willingness to return the check if it was so intended, and further stated that he would not cash the check until a certain date, to which letter defendants did not reply, and plaintiff cashed the check, there was no accord and satisfaction of plaintiff’s entire claim, as, from the silence of the defendants, it was to be presumed that they assented to plaintiff’s use of the cheek.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    L. Levene, for appellants.
    White & Case, for respondent.
   Per Curiam.

Plaintiff claims he was engaged by defendants to perform services for them in March, at the rate of $2,500 a year for the balance of the year. The pleadings were oral, and the defendants claimed an accord and satisfaction arising out of the following facts.-

The defendants calculated the sum of $950' as being the amount due to plaintiff up to October first, and inclosed him a check for that sum, which check stated on its face that it was “ in full of account.” Plaintiff replied in a letter, stating that he retained the check as payment in full of account up to October first; “ that this is not, however, in full payment of your obligations under our agreement. If you intend this payment as a full satisfaction I am entirely willing to return it, as I shall insist, as before stated, upon your complying with your part of the contract. I shall not cash the check until the 15th inst., until after you have had an opportunity to reply to this letter. I certainly do not accept the check in full of the contract, but only in full till October 1st, as you must have intended it.” The defendants did not reply to the letter and plaintiff cashed the check which was paid.

Where a check is sent, which is alleged to be in full payment of a claim, and the party receiving the check retains it and cashes it, without objection, this constitutes an accord and satisfaction.

However, in Fuller v. Kemp, 138 N. Y. 231, a similar state of facts occurred and the court said, referring to a letter similar to the one sent by plaintiff in this action: “ The just inference to be drawn from this communication was that he declined to accept the check in full payment, but had appropriated it as a partial payment of his claim, and the defendant undoubtedly so understood it. Had he then remained silent it might have been presumed that he assented to the use which the plaintiff had made of the check, and in time he would have become bound to pay the balance as upon an account stated.”

As, after the receipt of plaintiff’s letter, the defendants remained silent, it must be presumed they assented to the use made by plaintiff of the check.

The plaintiff endeavored to obtain other employment, was ready and willing to work during the month of October; and there is no other reason for disturbing the judgment, the other points now raised on the appellants’ brief not having been raised below.

Present: Gildersleeve, Dayton and Gerard, JJ.

Judgment affirmed, with costs.  