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Kardonsky v. Tozzi

Appellate Division of the Supreme Court of New York, Second Department
Mar 1, 1930
228 App. Div. 855 (N.Y. App. Div. 1930)

Opinion

March, 1930.


Judgment reversed upon the law and the facts, with costs, and judgment directed in favor of plaintiff, with costs, adjudging that there was an accord and satisfaction on April 23, 1925, by which, in consideration of the payment of $3,000 by plaintiff to defendant, the plaintiff became the owner of a one-half interest in the damage claims and the parties to this action mutually released each other from all claims, and that plaintiff's Exhibit 2 be reformed by substituting the name of the original and substituted plaintiff in place of "James Tozzi Co.," in the last sentence thereof. We believe it was the intention of the parties on April 23, 1925, to settle finally their joint adventure and to exchange general releases. This conclusion finds support in the fact that plaintiff delivered to defendant's agent, Catalano, his check for $3,000, upon which he had first written "Paid in full up to this date," and which check was accepted by Catalano upon defendant's behalf, without protest. It cannot now be claimed that such payment was not payment in full. ( Nassoiy v. Tomlinson, 148 N.Y. 326.) To carry out what seems to be the intention of the parties to exchange general releases, it is necessary to reform plaintiff's Exhibit 2, as above stated. Findings of fact and conclusions of law inconsistent with this decision are reversed, and new findings and conclusions will be made. Lazansky, P.J., Young, Carswell, Scudder and Tompkins, JJ., concur. Settle order on notice.


Summaries of

Kardonsky v. Tozzi

Appellate Division of the Supreme Court of New York, Second Department
Mar 1, 1930
228 App. Div. 855 (N.Y. App. Div. 1930)
Case details for

Kardonsky v. Tozzi

Case Details

Full title:BARNETT KARDONSKY, Appellant, v. JAMES TOZZI, Trading under the Firm Name…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 1, 1930

Citations

228 App. Div. 855 (N.Y. App. Div. 1930)