
    Samuel B. Dobbs, Respondent, v. Prudden-Winslow Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Accord and satisfaction — what completes an — delivery unsatisfactory.
    On the delivery of brick ordered by defendant from plaintiff by sample they proved to be unsatisfactory. Defendant notified plaintiff that the expenses of a proper adjustment of the mistake would be deducted from the amount of his bill and mailed him a letter enclosing a check for the difference. Plaintiff answered that he would receive the check only on account, whereupon defendant replied that he tendered the cheek only in full settlement and that if plaintiff did not see fit to accept the check to return it. Held, that as it was clear that some expense had-been incurred and that there was a bona fide dispute in regard to the shipment of the brick the deposit by plaintiff of the check and the use of its proceeds completed an accord and satisfaction.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of plaintiff, and from an order denying defendant’s motion for a new trial. The case was tried by the court without a jury.
    Zabriskie, Murray, Sage & Kerr (Charles L. Cole, of counsel), for appellant.
    Albert Woodin Gray (James P. Callender, of counsel), for respondent.
   Cohalan, J.

On December 3, 1914, the defendant ordered bricks from the plaintiff to be used in Greenwich, Conn. These bricks were to conform to sample. When the bricks were delivered they proved to be unsatisfactory. At a conference held thereafter by the representatives of the parties to the action, there was a discussion as to whether or not the bricks should be culled, and that the expenses therefor and other expenses incidental to the proper adjustment of the mistake should be borne by the plaintiff; all with the approval of the architect of the building in process of construction.

It is clear that some expenses were incurred, and that there was a dispute in regard to the shipment. After the matter had been finally closed and the plaintiff had requested payment for the order of December 3, 1914-, which was shipped on April 16, 1915, the defendant wrote a letter to the plaintiff inclosing a check for $152.09. This letter stated that the check was in full settlement, after deducting $80.41, the expenses of the adjustment. The plaintiff answered that he would accept the check only on account. Whereupon the defendant replied that the check was tendered in full settlement, and, if the plaintiff did not see fit to accept the same, to return it. The plaintiff did not return the check, but on the contrary deposited the same and used the proceeds.

There was manifestly a bona fide dispute as to the amount to which the plaintiff would be entitled upon the delivery of the bricks to fill the order of December 3, 1914. The defendant notified the plaintiff that the expenses of the adjustment would be deducted from the amount of the plaintiff’s bill, and the fact that it had so notified the plaintiff shows that the full value of the bricks when delivered was not to be paid by it. The situation, therefore, contained the elements of a dispute within the meaning of the rules governing an accord and satisfaction. Barron v. Brooklyn Heights R. R. Co., 150 App. Div. 845; Ravenswood Paper Mill Co. v. Dix, 61 Misc. Rep. 235; Waterbury Co. v. Maryland Casualty Co., 134 N. Y. Supp. 565.

We are of opinion that the sending of the check in full settlement and the use of . the proceeds thereof by the plaintiff completed an accord and satisfaction. It is immaterial whether or not the creditor sent a receipt on account, or contends that he did not accept the check in full payment of the claim.

Gttjy and Butte, JJ., concur.

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