Zaharakis v. J. R. D. Management Corp.
| Decision Date | 11 December 1974 |
| Citation | 361 N.Y.S.2d 854,79 Misc.2d 1068 |
| Parties | Elias ZAHARAKIS d/b/a Multi-Color Painting Company, Plaintiff, v. J. R. D. MANAGEMENT CORP., Defendant. |
| Court | New York City Court |
Plaintiff's bookkeeper was the sole witness testifying at this nonjury trial. She was called by both sides to testify, and her testimony stands uncontroverted. The proof establishes that the witness conducted all transactions on behalf of plaintiff painting contractor with five or six of the defendant's agents or employees for the period May through July 1974. A Mr. Podek contacted plaintiff on behalf of defendant management corporation and retained plaintiff to do painting in the some 60 buildings under defendant's management. Mr. Podek was to give the orders for painting by telephone or mail, and plaintiff was to paint at the rate of $35 per room plus additional for 'open plastering' depending upon each apartment. The witness testified that it was the custom of the trade to count kitchens and bathrooms as separate rooms for the purpose of billing.
From invoice records, the Court is satisfied that plaintiff was engaged to do 23 painting jobs between May 22 and June 30, 1974, for which plaintiff billed defendant a total of $3779.50, and was only paid $2404.50 by one check dated July 17, 1974 (Court's Exhibit 1 in evidence). The witness testified that no other amounts were paid for these jobs and, although the balance of $1375 had been duly demanded, no other payment has been made. In fact, a demand was made of a Mr. Wiener, allegedly the son of defendant's attorney.
Defendant relies principally on the check in evidence as proof of its affirmative defense of 'executed accord and satisfaction.' The printed form check bears the following legend in the upper lefthand corner in quite small print: 'By endorsement this check when paid is accepted in full payment of the following account'. There follows in a ruled box under this legend: handwritten building addresses, apartment numbers, and amounts allocated in payment of plaintiff's bills as filled in by defendant. Under the box, in equally small print, is the following legend: 'If incorrect please return-no receipt necessary.' Under that last legend in blue ink and handwritten by defendant as its attorney admits is the further legend: 'In full settlement of all claims.' The word 'full' was obliterated by the witness, and she overwrote the word 'partial' in place of 'full'; and then deposited the check for collection.
The check is dated July 17, 1974, a Wednesday; it was mailed and therefore received a day or two later by plaintiff, and then deposited by mail and cancelled at plaintiff's bank for collection on July 22, 1974. When she was asked on cross-examination why the check was deposited if it was not in the full amount, the witness replied that plaintiff was 'waiting for another check to be received on account of the balance, and I deposited the check because I needed to meet our payroll.' Her testimony further shows an unswerving pattern on the part of defendant in paying less than the full amount billed for each of the individual apartment jobs. This apparently was a unilateral practice not otherwise explained by defendant, as was a unilateral action in mailing the check exhibit 'in full settlement of all claims.' There was no admissible proof that the amounts billed by plaintiff were ever disputed by defendant. Further, the witness testified that she did not see or read the small print legends on the check, but only had her attention drawn to the handwritten legend which was also circled in blue ink and, therefore, a conspicuous attention-getter.
When plaintiff rested, defendant moved to dismiss the complaint on the ground that, as a matter of law, defendant had a right to condition a 'proposed settlement on any conditions it saw fit.' Defendant's attorney also argued that since plaintiff cashed the check, plaintiff is bound by its irrevocable decision to take the check on the conditions stated on the face on the check, and thus, the cashing of the check was an acceptance of defendant's conditions in full payment regardless of plaintiff's subsequent alteration of 'full' to 'partial.' Defendant cites in support of its position: (1) Mercury Record Corp. v. Glazer, 29 Misc.2d 567, 213 N.Y.S.2d 231 (New York County Supreme Court Special Term, 1961). However, the Court does not find the circumstances of that case applicable to this one, and is distinguishable in that there was a four year hiatus in the Mercury case in discovering an error in overpayment. Here, suit was commenced within the month of July 1974, when the check was received and deposited by plaintiff to perfect its claim to the balance due. Further, the Mercury case is a First Department case not binding upon this Court; it is a memorandum decision rendered at Special Term holding against plaintiff 'as a matter of discretion'; and does not cite any legal authority for the position taken.
(2) The next case cited by defendant is Carlton Credit Corp. v. Atlantic Refining Company, also a First Department case, and thus not binding upon this Court. 12 A.D.2d 613, 208 N.Y.S.2d 622 (1960). This case is also distinguishable to the one now before this Court in that the disputed check was annexed to a covering letter 'itemizing in detail' the deductions claimed. The Court concluded in the Carlton Credit case that it was:
'clear that the payment made was conditioned upon its acceptance as payment in full for the larger amount claimed by the plaintiff to be due it from the defendant. There is no merit to the contention that the amount involved was liquidated and not in dispute. The letter clearly points up a difference in the amounts claimed to be due by the respective parties. Such a difference renders the amount in question unliquidated 'within the meaning of * * * accord and satisfaction'. * * * The plaintiff could not accept the payment and reject the condition.
Here, the facts are not the same. In Carlton, the Court found the covering letter, 'clearly conditioned the check upon its being payment in full.' Here, there was no detailed letter and the ruled boxed-in portion of the check, two-by-two inches square briefly listing addresses, apartment numbers and amounts only, does not spell out in each instance, with clear specificity, that the listed amounts proffered were, in fact, the final amounts owing for each individually specified painting job. The Carlton case cites Judge Cardzo's holding in Hudson v. Yonkers Fruit Company, 258 N.Y. 168, 179 N.E. 373, to the effect that 'What is said is overriden by what is done, and assent is imputed as an inference of law.' This Court points out that an inference of law is rebuttable by uncontroverted proof to the contrary.
(3) The third case cited by defendant is Roberg v. Evyan, Inc., 7 Misc.2d 851, 163 N.Y.S.2d 729, also a New York County Supreme Court Special Term matter (1957), and, as such, is also not binding upon this Court. This case is also distinguishable from the one under consideration in that it involved an unliquidated sum where there was a real dispute as to the nature and extent of the obligation, and under such circumstances where the debtor tendered a check to plaintiff as payment in full there was an accord and satisfaction, notwithstanding the striking of the condition on the check by the plaintiff subsequent to the certification of the check. The Court in the Roberg case found 'From the state of the estimates and invoices, some of which bore the same numbers but allegedly represented different work or different charges, and the difficulty even at this date of obtaining a clear or accurate picture of the obligation of the parties, one must conclude that the account was unliquidated.' This is not the instant case where the proof is not only uncontroverted but fully clear and certain as to the amounts billed and owed for each of the 23 invoices cited in plaintiff's proof.
(4) Finally, defendant cites in its defense Armour & Company v. Schlacter, Co.Ct., 159 N.Y.S.2d 135, a 1957 Westchester County Court decision, which held that '(w)here debtor sent check to creditor in full payment and satisfaction of creditor's (liquidated) claim, creditor would not be heard to contend that it had accepted the check as payment on account of the indebtedness only, even though it had struck out the payment and satisfaction notation on the check.' The check in the Armour case bore the legend (p. 136): 'This check is delivered to you in full payment and satisfaction of your claim in the sum of $383.70 against Mr. Schlacter' plus the further...
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Leckie's Estate, Matter of
... ... The Surrogate cites Carlton Credit Corp. v. Atlantic Refining Co., 12 A.D.2d 613, 208 N.Y.S.2d 622, affd. 10 N.Y.2d 723, 219 N.Y.S.2d 269, ... date of the transmittal of the check asserted to establish an accord and satisfaction (Zaharakis v. J.R.D. Corp., 79 Misc.2d 1068, 361 N.Y.S.2d 854). Nor could respondent as a fiduciary impose ... ...