
    Armour and Company, Appellant, v. Edison Electric Illuminating Company of Brooklyn, Respondent.
    Second Department,
    October 5, 1906.
    Answer—when allegation of payment of charges for electric lighting does not set out accord and satisfaction.
    When a plaintiff sues to recover sums paid to a defendant electric lighting company under a contract which unjustly discriminated against the plaintiff by requiring higher rates than those given to other customers, it is no defense to allege that such payments were made under a specific contract, and that prior to the action the plaintiff settled and adjusted all accounts with the defendant and paid the same in full. Such allegation does not set out an accord and satisfaction or a release of the plaintiff, for it fails to allege that an adjustment was made as to matters alleged in the complaint which is founded upon an-unjust discrimination, the payments alleged being merely part of the plaintiff’s cause of action.
    Appeal by the plaintiff, Armour and Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 31st day of July, 1905, upon, the decision-of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to the defendant’s answer and dismissing the complaint upon the merits.
    
      
      Philip B. Adams, for the appellant.
    
      John L. Wells, for the respondent.
   Hooker, J.:

This appeal presents all of the questions decided in Armour Packing Co. v. Edison Electric Illuminating Co. (115 App. Div. 51). An additional question arises here in this manner: The defendant in addition to alleging that the .payments were made pursuant to specific terms in writing between the parties, avers as a second separate defense, that prior to the commencement of this action the plaintiff settled and adjusted, all accounts of the déféndant against the plaintiff for electric light current, furnished at the localities named in the complaint and the plaintiff paid defendant in full therefor. 'The plaintiff demurs to this second separate defense, as well as'to the other, on the ground that the same is insufficient in law upon the face thereof and the demurrer should be sustained. This allégation in the answer.is nothing more than a reiteration of the allegations in the complaint that the plaintiff paid in full under its contract for all electric current furnished by the defendant. The suggestion made by the respondent that this is an allegation of accord and satisfaction or a pleading of a release does not meet the situation, for it fails to allege that the adjustment was made of the matters and-things complained of in the complaint. The allegation of the payment of the bills is not the allegation- of payment of the plaintiff’s present claim, which is for unjust discrimination, and inasmuch as the gist of the action is an overcharge by reason of unjust discrimination, the payment of the bills is father a part of the cause of action than .a defense.

The judgment in this case must, therefore, also be reversed and the entire demurrer sustained.

Hirschberg, P. J., Gaynor,. Rich and Miller, JJ., concurred.

Judgment reversed and demurrer to the. separate defenses sustained, with costs, and new trial granted, costs to abide the final "award of costs.  