
    John J. Daly Iron, Steel & Metal Company, Respondent, v. U. S. Metal & Manufacturing Company, Appellant.
    (Supreme Court, Appellate Term, Second "Department,
    May, 1912.)
    Accord and satisfaction — who may make — checks and drafts — acceptance of sum in gross.
    Payments — payment as an issue — recovery back of excessive payments.
    In the absence- of explanation, the receipt and the deposit of voucher checks reciting that the payments- were “ in full- ” .constitute an accord and satisfaction, though the words “ in full ” had been scratched out.
    Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, rendered in favor of plaintiff.
    -Charles J. Hardy, for appellant.
    Lawrence T. Gresser, for respondent.
   Per Curiam.

We think that the receipt and deposit of the voiicher checks reciting that the payments were in full,” constituted an accord and satisfaction, unless explained in some way. . Nassoiy v. Tomlinson, 148 N. Y. 326; Gribble v. Van Praag Supply Co., 124 App. Div. 829. The amount due was in dispute; the parties were at odds over the weights. Plaintiff received the vouchers but crossed out the words in full ” receipting them and depositing them. Nothing is said about it on the trial except the bare statement of plaintiff’s "president that he “ scratched out” the words. Unless there is some explanation, this constitutes an accord and satisfaction.

Again, the plaintiff failed to show the weights as returned by the mills. ' We do not say this was an essential part of plaintiff’s case, and defendant failed to show these weights, possibly because it was denied a commission to examine the witnesses at the mill. The written order provides that payments are to be made according to the weights shown by the returns from the mill. There is nothing inconsistent in the written and printed part of the order. p If there were, doubtless the written part would control. But they relate to different subjects — one; the written part, provides for delivery in Long Island City, the other, the printed part, for weighing by the mill. If the weight at Long Island City and the weight at the mill differed, it may be that plaintiff can explain it, or that the court will find that part of the goods was lost in transit. But we think it is clear that defendant had the right to show the weight at the mill.

Present: Kelly, Jaycox'and Clark, JJ.

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