
    The Federal Printing Company, Respondent, v. Garrick Press, Appellant.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Accord and satisfaction — Payment of less sum than due — Application of rule to disputed demands.
    Where defendant delivered to plaintiff a check, for less than tlv amount of its claim for work and materials, across the face of which was written “ Account in full to date ” with a voucher to be receipted and returned to it and plaintiff had the check certified and kept it about two weeks and then returned it- to defendant whose treasurer told plaintiff’s representative that he would keep it until he sent for it, that it belonged to him; and where the check remained in defendant’s possession for about three months when plaintiff’s representative called on defendant and said he had come to make a settlement, whereupon defendant’s treasurer said he had a check that belonged to plaintiff and gave him the same check, which he carried away with him, and on the same day wrote defendant that he had forwarded the check to plaintiff with instructions to credit it to defendant’s account and would await their advice about proceeding to collect the balance, to which defendant made no reply, and on the following day plaintiff cashed the*check; held that this transaction did not constitute an accord and satisfaction.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ¡New York, third district, borough of Manhattan.
    
      Thomas H. McKee, for appellant.
    Fallows, Judd, Goode & Miller, for respondent.
   Per Guriam.

The action is for a balance due for work' and materials. The defense is an accord and satisfaction. The court found for plaintiff. Defendant appeals. The original answer fixes the date of the accord the 16 th of June, 1905, but it was amended at the trial, and the date changed to October 3, 1905. The facts are substantially as follows, viz.: Prior to June 16th, 1905, plaintiff did work for which it claimed $1,710.27. On June sixteenth, after some dispute between the parties, defendant sent to plaintiff a check for $1,028.27. Written in ink upon the face of the check was the following: “Account in full to date.” Attached to the check, and forwarded with it, was a voucher to be receipted by the plaintiff and returned by it to defendant. Upon this voucher appeared the words: “ Corrections on this voucher not recognized; if not acceptable, return check.” On June twenty-first the plaintiff wrote defendant, returning the voucher. Thereafter, and on the same day, defendant wrote to plaintiff: “We sent you this remittance to cover everything up to date on which it was sent you. We return herewith bills and voucher, and would request that you either return the check, or receipt and return the enclosed voucher at once.” Plaintiff, however, had the check certified on said twenty-first of June, and retained it about two weeks, during which time, of course, the money was held by defendant’s bank subject to said check. Plaintiff then returned the certified check, by its representative Smith, to defendant. On that occasion, defendant’s treasurer Beggs stated to plaintiff’s representative that it was all defendant could pay, and that defendant was paying according to the plaintiff’s estimate and defendant’s order. Smith replied that plaintiff could not accept it, and left the check lying on the desk of said Beggs. The latter then said to Smith: “I will keep it until you send for it. It belongs to you.” The check remained in defendant’s possession until October 3, 1905, when, a representative of plaintiff’s attorney, Mr. Kingsbury, called upon Beggs, and said to Beggs he had come to effect a settlement. Beggs replied, I have a check here belonging to the company (plaintiff),” and he handed this same certified check to the said representative, who took it away with him. Beggs claims he also gave said representative the voucher, but this is denied, nevertheless, plaintiff produced the voucher at the trial, which would seem to corroborate Beggs. On the same day the plaintiff’s attorney wrote to defendant as follows: “I beg to acknowledge receipt of your certified check for $1,-028.27, payable to the order of the Federal Printing Company. I have forwarded the check to them, with instructions to credit your account with that amount, and await their further advice about proceeding to collect the balance claimed by them.” To this letter defendant made no reply. On October 4, 1905, the plaintiff cashed the check. It does not seem to us that the events of October 3, 1905, upon which defendant must rely, under its amended answer, constituted an accord and satisfaction. The representative who took the check said nothing to indicate that the check was taken in full payment, nor did Beggs state to him that it was so given. The letter of plaintiff’s attorney of the same date specially shows that it was not so taken in full satisfaction, and to this letter defendant made no reply. The numerous authorities cited by the appellant do not apply to the facts presented in the case at bar.

The judgment is affirmed, with costs.

Present: Gildersleeve, Levekttbitt, and McOall, JJ.

Judgment affirmed, with costs.  