Moers v. Moers

Dowling, J.: This is an action in equity brought by a son against his mother to compel specific performance of a written agreement between plaintiff and defendant. The complaint sets forth the following facts: On December 7, 1918, an action was pending in the Supreme Court, New York county, wherein Carrie C. Moers was plaintiff and Albert A. Moers was defendant, to recover the sum of $51,470.24 for money loaned. An answer was interposed denying all the allegations of the complaint and that action is at issue and upon the calendar of the said court for trial. On that date, in order to compromise and settle all matters in dispute between the parties to the suit, they entered into an agreement in writing under seal, a copy of which is attached to the complaint in the present action. Thereby Albert A. Moers agreed to support his mother, Carrie C. Moers, for the remainder of her life, and to that end to pay her the sum of $3,000 per annum, in equal monthly installments, beginning January 1, 1919; and also to pay her the sum of $12,500 on December 9, 1918. Upon receipt of said sum of $12,500, Carrie C. Moers agreed to reassign to plaintiff certain policies of life assurance upon his life, which had theretofore been assigned by him to her, and also contemporaneously with such assignment to indorse a certain check for $1,237.30 made to the joint order of plaintiff and defendant, which check was to become the sole property of plaintiff. It was further provided by said agreement that defendant should return to plaintiff a certain will made by him, dated August, 1915, which is alleged to have “ peculiar and sentimental value ” to him, and also certain books, papers and documents, which defendant agreed to return to plaintiff upon receipt of said sum of $12,500. It was further agreed [655] that general releases should be exchanged between the parties and that defendant should execute and deliver a general release to plaintiff’s wife. It is then alleged that on December 9, 1918, plaintiff duly tendered to defendant the sum of $12,500 and a general release duly executed by him and demanded performance of the aforesaid agreement by the defendant who refused to accept either the money or release and further refused to perform any part of the agreement by her to be performed. It is averred that plaintiff has duly performed all the conditions of said agreement upon his part to be performed and is entitled to complete performance of said agreement upon the part of defendant; and that unless defendant is required to specifically perform the agreement, plaintiff will suffer irreparable injury for which he has no adequate remedy at law, the sole ground for such claim being apparently the statement that plaintiff’s books, papers and documents, including his former last will and testament, have peculiar and sentimental value to him. It is further alleged that defendant threatens and intends, unless enjoined by the court, to proceed with the prosecution of her action still pending in the Supreme Court to recover from the plaintiff the sum of $51,470.24, with interest. Plaintiff avers his readiness to perform the agreement in all particulars and to comply with any decree of the court ordering him to comply therewith. The relief asked for is: (1) That the plaintiff recover judgment against the defendant adjudging and directing that the defendant specifically perform the agreement of December 7, 1918, in all things; (2) That she make, execute and deliver the general releases provided for by said agreement; (3) That she reassign to the plaintiff all policies of life insurance heretofore assigned to her by the plaintiff; (4) That she indorse the check of the Equitable Life Assurance Society of the United States for $1,237.30, dated June 14,1917; (5) That she return and deliver to the plaintiff all his books, papers and documents, including a certain last will and testament made by the plaintiff in or about August, 1915; and in all things and respects perform her said written agreement with the plaintiff; [656] (6) That the' defendant be permanently and perpetually enjoined and restrained from proceeding with the prosecution of her action pending in the Supreme Court of the State of New York, New York county, wherein she is plaintiff and this plaintiff (Albert A. Moers) is defendant, and in which judgment is demanded for the sum of $51,470.24, plus interest; (7) That the plaintiff may be granted an injunction pendente lite against the defendant restraining her from taking any further steps or proceedings in said action above referred to until after the trial and determination of this action; (8) And that the plaintiff have such other," further or different relief in the premises as may be agreeable to equity and seem good to the court, besides costs. It is clear from the terms of the agreement in question that it is an accord only and not an accord and satisfaction. Being only an accord, and no satisfaction having been had, it is not only insufficient as a defense but cannot form the basis of a cause of action. The agreement is entirely executory. Nothing whatever was done by either party when it was signed. There were mutual promises to do certain things in the future, and the present defendant did not agree to do anything in consideration of plaintiff’s promise, but agreed to perform only when the sum of $12,500 was actually paid. No releases were then exchanged, nor was the then pending action discontinued. The act upon which all the other acts depended was the actual payment of the $12,500 when made at a future date. But that payment never was actually made, though the plaintiff tendered the amount. But that was not actual performance, only a tender of performance, and it has been uniformly held that a tender of performance is not sufficient; to sustain a plea of accord and satisfaction, the agreement must be completely executed. (Brooklyn Bank v. De Grauw, 23 Wend. 342; Day v. Roth, 18 N. Y. 448; Noe v. Christie, 51 id. 270; Kromer v. Heim, 75 id. 574; Smith v. Cranford, 84 Hun, 318; affd., 155 N. Y. 640; Mance v. Hossington, 205 id. 33; Reilly v. Barrett, 220 id. 170; Goffe v. Jones, 132 App. Div. 864.) There having been no accord and satisfaction, not only would the agreement in question of the parties be unavailable as a defense to the original action, but it cannot form the basis of an action in equity to enforce [657] performance of its terms. (Rubin v. Siegel, 181 App. Div. 181.) The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint on payment of such costs. Clarke, P. J., Page and Mereell, JJ., concurred; Laughlin, J., dissented.