
    Joseph Havender, Appellant, v. Sophia Brodbeck, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1914.)
    Appeal and error—: subsequent appeal.
    Accord and satisfaction — bona fide dispute.
    A decision on appeal that the correspondence between the parties indicated that at the time plaintiff accepted defendant’s check it was without prejudice to plaintiff's claim for interest and that no waiver of the right to recover it could be predicated merely on receipt of the principal governs on a subsequent appeal.
    An accord and satisfaction will not be implied from a creditor’s acceptance of a part of the amount claimed, though tendered in full payment, unless there is a bona fide dispute as to liability for the full amount claimed, and where liability for the principal was not disputed the mere refusal to pay interest without color of right does npt constitute a bona fide dispute as to the amount due.
    In the absence of agreement to the contrary, interest on the amount due by the terms of a contract is allowable from the date when said amount was agreed to be paid.
    Appeal from a.judgment of the City Court of the city of New York, entered in favor of the defendant, upon a verdict of a jury and from an order denying the plaintiff’s motion to set aside the verdict and for a new trial.
    Thomas C. Patterson (Herman M. Schaap, of counsel), for appellant.
    Louis Wendel, Jr., for respondent.
   Seabuby, J.

On April 29,1912, the plaintiff wrote the defendant’s attorney: “ Tour letter of the 27th in reference to the account of Mrs. Brodbeck received, and in reply would say that if you send me the check she left for me ($4,775.00), I will place the same to her credit. I am enclosing- you a statement of her account figured up to May 1st, 1912.”

With this letter was enclosed a statement of account showing the amount of the interest to May 1,1912: On April 30, 1912, the defendant’s attorney wrote the plaintiff as follows, enclosing a check for $4,775 to his order: “ Tours of the 29th instant to hand. I send you herewith check from Mrs. Sophia Brodbeck to your order for $4,775 in payment of vault, etc., erected in Woodlawn Cemetery. In sending you this check, however, I do not admit your right to interest on the same. ’ ’

The plaintiff accepted the check and sent to the defendant a statement showing the full amount due with interest, crediting the payment of $4,775, and leaving a balance equal to the amount of the interest to May 1, 1912.

The defendant claimed upon the trial, first, that by accepting the check for $4,775, the amount of the principal debt, the plaintiff waived the interest. As to this proposition, it was held on a prior appeal to this court from a dismissal of the complaint herein, that the correspondence between the parties at the time when the check was accepted clearly indicated that it was without prejudice to the plaintiff’s claim for interest, and that, therefore, no waiver of the right to recover could be predicated merely on the receipt of the principal sum. Havender v. Brodbeck, 83 Misc. Rep. 9, citing Grote v. City of New York, 190 N. Y. 235.

The second defense urged, and the one upon which it appears the case was sent to the jury, was that the check was given and accepted as an accord and satisfaction of the entire debt. The only evidence in support of this defense was the testimony of the defendant’s attorney to the effect that after the plaintiff received the check he held a telephone conversation in which he told the plaintiff: “ This payment of $4,775 is in full of your bill.” He admitted, however, that subsequently he received a statement crediting the payment on account merely, and that thereafter no communication was had between them, except that in the following October after Mr.s. Brodbeck returned from Europe he sent a postal card to the plaintiff requesting him to call, although he had no other business with the plaintiff except that involved in this matter. This conversation after the letter of April 30, 1912, was denied by the plaintiff. We think the evidence, when taken as a whole, in connection with the documentary evidence, and the conceded facts, sustains the claim of the plaintiff: An accord and satisfaction will not be implied from acceptance by a creditor of a part of the amount claimed, though it be tendered in full payment, unless there existed a bona fide dispute as to the liability for the amount thereof. Mance v. Hossington, 205 N. Y. 34; Laroe v. Sugar Loaf Dairy Co., 180 id. 367. In the case at bar, the liability of the defendant under her written contract to pay the plaintiff $4,775 on January 1,1910, was at no time disputed. In the absence of agreement to the contrary, interest upon that amount was allowable by law from the date when, by the terms of the contract, that amount was agreed to be paid. Pryor v. City of Buffalo, 197 N. Y. 123; Adams v. Fort Plain Bank, 36 id. 265.

Though there is some evidence that the defendant, when presented with a bill for two years’ interest at the legal rate, refused to pay more than five per cent., there is no evidence of any agreement by the plaintiff to waive or remit any portion of the interest allowed by law. The mere refusal of the defendant to pay without color of right did not constitute a bona fide dispute a: to the amount due.

Judgment appealed from should be reversed and judgment directed for the plaintiff for the amount demanded in the complaint, together with the costs of this action and costs of the appeal.-

Bijtje and Cohalax, JJ., concur.

Judgment reversed and judgment directed for plaintiff, with costs.  