Cantasano v. Courtney

Guy, J. Plaintiffs sue to recover an alleged balance due for goods sold and delivered at an agreed price. The answer is a denial of sale and delivery at an agreed price, and separate defenses of payment and accord and satisfaction, and a counterclaim for damages for breach of warranty. The counterclaim was dismissed on motion of plaintiffs’ attorney, and no appeal is taken from such dismissal. The defendant testified that he mailed a check to plaintiffs for an amount which he claimed to be all that was due from him to plaintiffs; but there is an entire absence of competent proof of delivery of the check, of the manner in which it was mailed, how the envelope was addressed and whether the postage was prepaid, and no proof that the check was ever converted into cash by the plaintiffs. Plaintiffs introduced evidence that no such check was received by them. In the face of such denial defendant’s mere testimony that he mailed the check to plaintiffs is insufficient. [625] The mere delivery of a check does not ordinarily constitute proof of payment (Daniel Neg. Inst. § 1623; Thompson v. Bank of British N. Am., 82 N. Y. 1-8; Morrison v. Chapman, 155 App. Div. 509, 513; Siegel v. Kovinsky, 93 Misc. Rep. 541; affd., 174 App. Div. 857; Schultze v. Cohen, 156 N. Y. Supp. 610, 612); nor is it sufficient proof of an accord and satisfaction. “An accord and satisfaction requires a new agreement and the performance thereof.” 1 Cyc. 307; Windmuller v. Goodyear Tire & Rubber Co., 123 App. Div. 424. The judgment must be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event. Bijttr and Mullan, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.