
    Thomas J. Reynolds, App’lt, v. Empire Lumber Company, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed March 12, 1895.)
    
    Accord and satisfaction—Part payment.
    The acceptance and use of a check, which recites that it is “ in full ” of an unliquidated claim, constitute full payment thereof, though the creditor notified the debtor of its insufficiency and sends a bill showing a balance after crediting the check.
    Appeal from a judgment, dismissing the complaint, and for a counterclaim in favor of defendant.
    
      E. A. Nash, for app’lt; H. M. Hill, for resp’t.
   Dwight, P. J.

The sole question made on this appeal relates to the allowance of a counterclaim of $21.06; and whether that counterclaim was properly allowed depends upon .the question whether a certain payment, by check, made by the plaintiff to the defendant, was or was not in full of a small balance of indebtedness concededly due from the former to the latter, the amount of which was unliquidated. The referee finds the amount of that indebtedness on the 1st day of Jatmary 1889, to have been $106.43. On the 9th day of February the plaintiff sent to the defendant a statement of the account, exhibiting a balance due from him of $85.37, and in.closed his check for that amount in the following terms:

“Rochester, FT. Y., Feb’y 9,1889.
“Banking House of A. 0. Woodruff, Livonia, N. Y : Pay to the order of Empire Lumber Company, Lt’d, in full, eighty-five and 37-100 dollars.
“$85.37-100. [Signed] T. J. Reynolds.”
The check was received by the defendant in due course of mail, and on the 11th day of February the defendant wrote the plaintiff as follows:
“Ridgeway, Pa., Feb’y 11, 1889.
“ T. J. Reynolds, Esq.
“ Dear Sir : Yours of the 9th, inclosing check for $85.37, purporting to be in full for account between us, received. In reply, ■vire cannot accept it in that way, as you owe us $39.45 yet, to "balance a\c to Sept. 19th, 1888; and on receipt of same, in addition to check of $85.87 rec’d, will balance a\c,and receipt to you,
“ [Signed] Empire Lumber Co.,
“A. M. McOlaim, Treas.”

On the 18th day of the same month the defendant again wrote the plaintiff, inclosing this time its statement of the account, exhibiting a balance due defendant, to date, of $142.20, after crediting the check of $85.37, and again declining to accept the check in full settlement of the same. To this letter the plaintiff replied on the 23d of the same month, pointing out what he asserted were errors in the defendant’s statement of the account, and insisting upon the correctness of his own. There seems to have been no further reference to the check, in the correspondence of the parties, until the 9th day of September, when the defendant wrote the plaintiff as follows:

“ Ridgeway, Pa., Sep. 9, 1889.
“ T. J. Reynolds, Esq.
“ Dear Sir': Referring to your last, Feb’y 9, inclosing check, $85.37, purporting to bé in full, would say we to-day credit the check oh a\c, and use same. We cannot recognize it as a full settlement of a\c, as the check indicates.
“Yours, &c.,
[Signed] Empire Lumber Co., Lmt’d.”

Upon these proofs the referee found, as matter of fact, •“ that on the 9th day of February, 1889, the plaintiff paid the defendant, on account, the sum of $85.37,” to which finding the plaintiff excepted. The plaintiff also excepted to the refusal of the referee to find, on request, that the payment of $85.37 was in full of any claim of the defendant against the plaintiff.

We think the two exceptions were well taken. The principles involved, and the rule applicable to cases of this character, have been recently discussed by this court and the court of appeals in two cases in which the facts were somewhat different, and the results different, accordingly. See Fuller v. Kemp, 138 N. Y. 231; 52 St. Rep. 342, and Nassoiy v. Tomlinson, 65 Hun, 491; 48 St. Rep. 182. The discussion, pro and con, in those cases, was so full that we do not deem it necessary to repeat it in this case. We think we need only say that we find the present case to conform in its essential facts to the former of these cases, in which it was held that the payment there made and accepted was to be regarded as a payment in full of the claim in dispute between the parties. And so we hold in this case. It follows that the judgment appealed from must be reversed, unless the defendant consent to its modification by striking out the recovery on the counterclaim.

Judgment reversed, and a new trial granted, costs to abide the event, unless the defendant, within twenty days, stipulates to strike out from the judgment, as entered, the recovery on the eounter■claim of $27.75, in which case, the judgment, as modified, is affirmed, without costs of this appeal to either party.

All concur.  