Moers v. Moers

• Decision Date: 07 July 1920
• Citation: 229 N.Y. 294,128 N.E. 202
• Parties: MOERS v. MOERS.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 294

128 N.E. 202

MOERS

v.MOERS.

Court of Appeals of New York.

July 7, 1920.

Action by Albert A. Moers against Carrie C. Moers. From a judgment of the Appellate Division of Supreme Court in First Judicial Department (180 N. Y. Supp. 945), affirming a judgment for defendant dismissing the complaint, plaintiff appeals.

Judgments reversed and demurrer overruled, with leave to answer.

See, also, 187 App. Div. 653,176 N. Y. Supp. 277.

Appeal from Supreme Court, Appellate Division, First Department.

Abraham Benedict, of New York City, for appellant.

Leo R. Brilles, of New York City, for respondent.

COLLIN, J.

The plaintiff seeks a judgment directing the defendant to specifically perform a contract between the parties. The demurrer of the defendant that the complaint does not state facts sufficient to constitute a cause of action was overruled by the Special Term and sustained by the Appellate Division. The complaint was not, under the leave of the Appellate Division to amend, amended, and was dismissed by the final judgment, which was affirmed by the Appellate Division.

The complaint alleges, in effect, and the demurrer admits the facts: The contract in question, in writing and under seal, was dated December 7, 1918. It recited the existence of various differences and controversies between the parties; the pendency of an action by the defendant here against the plaintiff, who is defending it, to recover $51,470.24 with interest, and the desire of the parties to compromise and settle ‘all matters in dispute between them of every kind and nature whatsoever, including the matters and things embraced in said action above referred to,’ and stipulated that the plaintiff should pay the defendant on December 9, 1918, $12,500, and he or his legal representative should pay her on January 1, 1919, and on the first day of each month thereafter during her life, $250; the defendant ‘upon the receipt of said $12,500’ should immediately reassign to the plaintiff all policies of insurance upon his life and indorse a certain designated check payable to the parties jointly, and ‘contemporaneously with the receipt of said sum of $12,500,’ sign and deliver to him a letter retracting all derogatory statements made by her against plaintiff or his wife, should refrain from making similar future statements, and should return to him a designated last will and testament executed by him and all his books, papers, or documents ‘such as old notes, checks and letters, including all letter heretofore written by’ him to her ‘and all other property.’ It further provided:

‘In consideration of the payment by the party of the first part (the plaintiff) to the party of the second part (the defendant) of said $12,500, and his promise to pay her the sum of $3,000 per annum for the balance of her life, said party of the second part promises and agrees that she at no time or under any circumstances or conditions directly or indirectly will engage in any speculation of any kind or nature, without first obtaining the written consent’ of the plaintiff, and in the event of her violation of such promise he shall be under no further liability or obligation to support or make further payment to her. ‘General releases shall be exchanged between the parties hereto; the release from the party of the second part to the party of the first part to be made and executed by her individually and as executrix of the estate of Charles Z. Moers, deceased, and in addition said party of the second part is to make, execute and deliver a general release in favor of the wife of the party of the first part, Theresa Moers.’

The plaintiff duly tendered to the defendant the sum of $12,500 and the general release, as provided by the contract, executed by him, and full performance on his part of the contract; the defendant refused performance in all respects on her part and threatens and intends to and will, unless restrained by the court, proceed with the prosecution of the pending action brought by her against the plaintiff here; the plaintiff will suffer irreparable damage and has not an adequate remedy at law. The relief is demanded: Judgment of specific performance by the defendant, and injunction against the prosecution of the pending action in her behalf. The defendant asserts and argues that the contract is an accord only, and therefore not binding upon her because she refused the satisfaction it provided. The Appellate Division sustained the assertion. The assertion is ill-founded and erroneous.

[1][2][3] There is no doubt that a mere accord without satisfaction is unenforceable, and that an accord with tender of satisfaction unaccepted is of like quality. An executory agreement for accord of a pending action without satisfaction made under it does not bar the prosecution of the action, and tender of performance is insufficient for that purpose. A mere accord without a satisfaction is ineffective and does not supersede or discharge the original contract or claim. A new executory agreement, whether performed or not, may be accepted in satisfaction of a previous obligation or liability, and if it is so accepted the remedy for breach thereof is upon the new and not the old agreement. But, as a rule, it is the accepted performance of the agreement and not the mere promise or tendered performance which amounts to a satisfaction. An accord not executed does not discharge the original claim. Whether there is an accord and satisfaction ordinarily involves a pure question of intention, which is, as a rule, a question of fact. If the evidence directly or through reasonable inference creates no conflict concerning the intention, it is a question of...