Opinion
March Term, 1901.
Bruce R. Duncan, for the appellant.
Samuel I. Frankenstein, for the respondents.
The plaintiff appeals from a judgment of the Municipal Court in favor of the defendants. The action is upon contract to recover thirty dollars. The defendants answered by general denial, and set up three separate defenses; accord and satisfaction, release, and payment. Prior to May 19, 1900, the plaintiff sued Meyersohn, Krakomer (the defendants in this action) and Mandel, who were copartners, and also Stein and H. Krakomer, in the Supreme Court, to foreclose a mechanic's lien for one thousand one hundred and thirty dollars. On May 19, 1900, the parties, save Stein and H. Krakomer, met to settle their differences. The plaintiff was represented by C. Wenz. The dispute narrowed to the thirty dollars, and the defendants in this action thereupon agreed with the plaintiff that if she would settle the foreclosure suit for one thousand one hundred dollars and would execute and deliver to all defendants in that suit a general release and a satisfaction of the mechanic's lien, they would pay the plaintiff the said thirty dollars. The plaintiff, not being present, it was agreed for her that the release and satisfaction would be executed and delivered to the defendants, and this was done two days afterwards. The defendants thereafter refused to pay the thirty dollars, whereupon this action was begun. At the close of the testimony the learned justice stated that he was satisfied that the promise sued upon had been made. He held, however, that the release was a bar, and, therefore, gave judgment for the defendants.
I think that this was error. The thirty dollars was part of the consideration for the release. There was ample consideration for the promise of the defendants to pay it in their release and their consequent discharge from partnership liability. ( Luddington v. Bell, 77 N.Y. 138; Waydell v. Luer, 3 Den. 410.) The complication is due to the fact that the plaintiff, instead of tendering the release with one hand and holding out the other for the entire consideration, trusted the defendants for the payment of the thirty dollars — gave them credit therefor. Upon default by them she was entitled to sue to enforce that payment. ( Szymanski v. Chapman, 45 App. Div. 369, 371.) The parol testimony is not objectionable as altering or modifying the release, for it but tended to establish that the full consideration therefor was not paid, and did not affect the force of the release. The agreement was not completely executed, and, therefore, there was no accord and satisfaction. ( Smith v. Cranford, 84 Hun, 318, and authorities cited.)
The judgment must be reversed and a new trial ordered.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.