Armour & Co. v. Schlacter

• Citation: 159 N.Y.S.2d 135
• Court: New York County Court
• Decision Date: 29 January 1957
• Parties: ARMOUR & COMPANY, Plaintiff-Appellant, v. Max SCHLACTER, Defendant-Respondent.

Page 135

159 N.Y.S.2d 135

ARMOUR & COMPANY, Plaintiff-Appellant, v. Max SCHLACTER, Defendant-Respondent.

Westchester County Court.

Jan. 29, 1957.

Nathan Lottman, New York City, for plaintiff.

Irving R. Kendall, Mount Vernon, for defendant.

GARRITY, Judge.

Plaintiff appeals from an order denying its motion to strike defendant's answer and for summary judgment.

Plaintiff delivered meat products to defendant, who was operating a meat department on a concession basis in a department store. Defendant's business activities were soon found to be unprofitable. Plaintiff, together with other creditors, was previously informed in writing of defendant's intention to sell his trade fixtures and to distribute the proceeds thereof pro rata among the creditors. Several weeks later the sale occurred and immediately thereafter defendant's attorney forwarded his own check, as 'Trustee', together with a letter giving the details of the sale. The letter further stated: 'This check is delivered to you in full payment and satisfaction of your claim in the sum of $383.70 against Mr. Schlacter'. In addition, the check on its face under the printed 'invoice' legend had written thereon 'in full payment and satisfaction your $383.70 claim against Max Schlacter'.

It further appears that no exception or opposition to the proposed sale was ever made by the appellant. The photostated copies of the check establish that it was deposited by the plaintiff in its bank. Prior to such deposit, plaintiff struck out the writing on the face of the check previously recited.

Appellant contends, firstly, that since 'the money was derived from the sale of the property, (it) accepted said check as a payment on account of his (defendant's) indebtedness only and not as payment in full'. It is further urged that there was no accord and satisfaction since the amount of the debt was liquidated and there was no dispute between the parties as to the claim. We find no substance to plaintiff's first point.

The most recent opinion involving somewhat similar facts is that of Horan v. John F. Trommer, Inc. (not officially reported), 137 N.Y.S.2d 26, 30, in which Judge Greenberg at Trial Term, Supreme Court, New York County, held:

'In New York, consideration is no longer required to support a promise in writing signed by the person to be discharged. Under Section 243 of the Debtor and Creditor Law, a written release of a claim or debt operates as a discharge even in the absence of consideration; and Section 33, subd. 3, of the Personal Property Law provides that a promise in writing and signed by the promisor constitutes a valid contractual obligation, even in the absence of consideration for the promise. The accompanying letter had the effect of an attached voucher and acceptance of the check was tantamount to acceptance of the accompanying letter and its terms. Had plaintiff wished to accept the check while still refusing to accept the accompanying conditions as spelled out in the letter, it was incumbent upon him to register this refusal.'

We are accord with the reasoning of this opinion and concur in its interpretation of the effect of the amendments to the Debtor and Creditor Law and the Personal Property Law.

The authority cited by appellant all involve situations of unliquidated amounts or bona fide disputes between the parties, but are actions decided prior to the statutory changes previously cited.

In Hudson v. Yonkers Fruit Co., 258 N.Y. 168, 179 N.E. 373, 374, 80 A.L.R. 1052, the language of Judge Cardozo is now particularly apposite:

'The other is where the tender of the payment has been coupled with a condition whereby the use of the money will be wrongful if the condition is ignored. Protest will then be unavailing if the money is retaind. What is said is overridden by what is done, and assent is imputed as an inference of law. 3 Williston on Contracts, §§ 1855, 1856; Am.L.Inst., Restatement of Contracts, draft No. 9, § 38-A.

* * *

* * *

'The question then is...