Opinion
April 17, 1950.
Present — Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ.
In an action to recover a balance alleged to be due for work, labor and services performed between February, 1946, and January, 1947, pursuant to a contract, defendant pleaded an accord and satisfaction. Payments were made by defendant during the course of the work, and on January 27, 1947, defendant paid to plaintiff the sum of $289 by check, upon which was written "Final payment in full of all work on contract and extras for 10 one family houses." At the time the check was delivered there had been a dispute as to some items of the account, and the amount paid was agreed upon as the entire balance due from defendant. The trial court found that plaintiff subsequently discovered that its bookkeeper had erroneously credited to the defendant a $200 payment which should have been credited to another corporation. Plaintiff informed defendant of this error and demanded payment of the $200, which was refused. Judgment in favor of plaintiff in the sum of $200, with interest, unanimously affirmed, with costs. Under the circumstances disclosed, neither the payment by defendant nor the retention of the amount so paid resulted in an accord and satisfaction. ( Mance v. Hossington, 205 N.Y. 33; Hett v. Barty Axle Corp., 229 App. Div. 388; Bloomington Mining Co. v. Brooklyn Hygienic Ice Co., 58 App. Div. 66, affd. 171 N.Y. 673.) Plaintiff was not required to bring an action to set aside the alleged accord and satisfaction ( Susquehanna S.S. Co. v. Andersen Co., 239 N.Y. 285), nor to plead facts establishing mistake in the acceptance of the payment. (Civ. Prac. Act, § 243.) Appeal from decision, dated October 12, 1949, dismissed, without costs.