Opinion
April 5, 1985
Appeal from the Jefferson County Court, Aylward, J.
Present — Dillon, P.J., Callahan, Denman, Green and Schnepp, JJ.
Order unanimously reversed, on the law, without costs, and judgment of Town of Adams Justice Court reinstated. Memorandum: In this action to recover attorney's fees, County Court erroneously held that plaintiff's acceptance of a check bearing the legend on the front, "final payment paid in full," constituted an accord and satisfaction. Accord and satisfaction is an affirmative defense which must be proven by the party asserting the claim (19 N.Y. Jur 2d, Compromise, Accord, and Release, § 26, at 333). For the defense to be established, it must first be shown that there is a disputed unliquidated claim between the parties which they have mutually resolved through a new contract "discharging all or part of their obligations under the original contract (6 Corbin, Contracts, § 1276; Restatement, Contracts 2d, § 281)" ( Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 N.Y.2d 590, 596).
Plaintiff sent defendant three separate itemized bills for services rendered. A check for $270.64 was tendered as final payment on the initial bill, dated October 3, 1981, for services rendered between July 14, 1980 and September 30, 1981. When she tendered the check, defendant was in possession of two additional itemized bills totaling $612.49 for services rendered between October 6, 1981 and October 28, 1982. Inasmuch as there was no dispute about the amount owed, negotiation of the check for the balance due under the October 3, 1981 bill could not form the basis for an accord and satisfaction of the remaining claims ( Envirex, Inc. v. Garrow Constr., 99 A.D.2d 307, 308; Manley v Pandick Press, 72 A.D.2d 452, 455, appeal dismissed 49 N.Y.2d 981). Moreover, acceptance of a check will operate as an accord and satisfaction only when the person receiving the check has been clearly informed that acceptance of the amount offered will settle or discharge the claim ( Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, 63 N.Y.2d 590, 596, supra). Here the restrictive language does not appear on the back of the instrument where an indorsement is normally placed. At most, the legend which "was not highlighted nor marked in any way as to draw attention to it" creates an issue of fact as to whether plaintiff was aware that the check was being sent in full satisfaction of the entire debt ( Itoh Co. v. Honerkamp Co., 99 A.D.2d 417, 418). Inasmuch as the Justice Court resolved that issue in plaintiff's favor following a hearing, the judgment of that court must be reinstated.