Opinion
March 21, 1966
In an action to recover moneys for work, labor, services and materials, plaintiff appeals: (1) from an order of the Supreme Court, Kings County, entered October 19, 1965, which denied plaintiff's motion for partial summary judgment (for $11,000 of the $20,000 first cause of action); and (2) from so much of an order of said court, entered October 29, 1965 on reconsideration, as adhered to the original determination. Order entered October 29, 1965, insofar as appealed from, reversed, with $10 costs and disbursements; motion for partial summary judgment granted to the extent of awarding plaintiff $10,677.50 on the first cause of action and directing that the action is severed as to the remainder of that cause of action and the other causes of action; and motion otherwise denied. Appeal from order entered October 19, 1965 dismissed, without costs. Said order was superseded by the subsequent order granting reconsideration. Defendant's original and amended answer admit the making of the contract but assert that the agreed price was $18,000, not $27,000 which is alleged by plaintiff, and further claim that on June 8, 1965, after a previous $7,000 payment, defendant sent an $11,000 check to plaintiff which bore the legend "in full payment." Plaintiff immediately wrote in answer, through its attorney, that the check was unacceptable; and on July 8, 1965, after a little less than a month of negotiations proved fruitless, plaintiff's attorney returned the check and the action was thereafter instituted. Defendant's principal argument against the imposition of partial summary judgment on this admitted indebtedness is the possibility of an accord and satisfaction. The affidavits and exhibits do not show this to be a bona fide or substantial defense in this case (see Dwan v. Massarene, 199 App. Div. 872, 880). Thus, there is here an admitted obligation of at least $11,000. However, defendant asserted a second defence of unsatisfactory workmanship resulting in an extra cost to him of $322.50. This aspect of the controversy requires a trial, for we may not judge its merits; but it is not such a matter as ought to bar the partial summary judgment on the main bulk of the indebtedness. Rather, we limit the partial summary judgment awarded here by the maximum amount that defendant may be able to establish at the trial as a credit or offset. Ughetta, Acting P.J., Christ, Brennan and Hopkins, JJ., concur; Hill, J., dissents from the determination as to the order of October 29, 1965, and votes to affirm that order insofar as appealed from; but concurs in the dismissal of the appeal from the original order.