
    John Carboy, Respondent, v. The Polstein Realty and Construction Company, Appellant.
    (Supreme Court, Appellate Term,
    February, 1909.)
    Orders — Acceptance.
    The acceptance of an order to pay to the drawee a sum oi money and deduct it from the next payment due the drawer on a contract for doing certain work, operates only as an equitable assignment of the balance due on -the contract but does not hold the acceptor for a greater amount.
    In an action by the payee upon such an order, where the principal question in dispute between the parties is as to the amount of the balance due upon tlhe contract, it is error for the court to charge the jury that, if the plaintiff is entitled to recover at all, he will he entitled to recover the amount remaining unpaid upon the order.
    Appeal by the defendant from a judgment of the City Court of the city of ¡New York, entered in favor of the plaintiff upon a verdict of a jury, and also from an order denying a motion to set aside the verdict and for a new trial.
    
      H. B. Davis and Henry S, Mansfield, for appellant.
    Katz & Sommerich (Maxwell C. Katz and Otto C. Sommerich, of counsel), for respondent.
   Seabury, J.

The defendant under two contracts agreed to pay Hertncy $17,650, for doing the work therein specified. The payments were required to be made in instalments. The work was completed August 9, 1907; and on that day Hertney signed and delivered an order on the defendant to pay $1,000 to the plaintiff and to deduct it from “ my next payment.” The plaintiff asserted, and the defendant denied, that this order was accepted on August 22, 1907, by the defendant.

The defendant made and delivered to Hertney notes aggregating $500 which were indorsed to the plaintiff and paid. The plaintiff claimed that this payment was on account of the $1,000 alleged to be due from the defendant. The defendant claimed that this payment was in full satisfaction of every amount due, and disputed that at the time $1,000 was due.

The only question submitted to the jury by the trial justice was whether the defendant accepted the order of August 22, 1907. The defendant contends that nothing was due to Kertney from it and that the payment of the notes was full satisfaction, and, therefore, insists that it was error to submit to the jury the single issue as to the acceptance of the order. The amount due from the defendant to Hertney was the subject of dispute and should have been submitted to the jury for their determination; and, if the order was in fact accepted, the defendant was liable to the plaintiff for the amount which it owed Hertney. The contractor could not make a valid order on the defendant for a greater sum than was due to him from it. The acceptance of the order operated as an equitable assignment only of the balance due. Her can the defendant be held for the amount of the order, merely because of its oral acceptance, if the amount of the order was in excess of the sum due from it.

The issue as to the amount due from the defendant was withheld from the jury, and they were permitted to determine merely the issue as to the acceptance of the order. The court charged the jury, subject to the exception of the defendant, that “ if the plaintiff is entitled to recover at all in this action he will be entitled to recover $500, with interest.” This instruction was erroneous, because it excluded the jury from considering the principal issue in dispute between the parties.

The judgment and order are reversed and a new trial ordered, with costs to the appellant to abide event.

Gildersleeve and Giegerich, JJ., concur.

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