#### Rufus S. King, Respondent, *v.*John B. Dorman, Appellant.

(Supreme Court, Appellate Term,

January, 1899.)

1. Accord and satisfaction — Indorsing a check “ Rec’d on account” — Evidence. •

Where the amount of the commissions on the sale of a vessel is in dispute between the principal and the agent, the use by the agent of a check, for a smaller amount than his claim, sent him by the principal as full payment, although indorsed by the agent “ Rec’d on account ”, is admissible to show an accord and satisfaction of his demand.

3. Appeal — Refusal of Municipal Court of New York to permit an amendment on the trial.

It being mandatory upon the Municipal Court of the city of New York to permit a pleading to be amended on the trial, provided substantial justice will be promoted, its refusal on the trial, to permit an amendment of an answer by pleading a valid accord and satisfaction, constitutes reversible error.

Appeal by defendant from a judgment of the Municipal Court of the City of New York, Borough of Manhattan, first district, rendered in favor of the plaintiff upon a trial had before the court without a jury.

The nature of the action and the material facts are stated in the opinion.

William T. Tomlinson, for appellant.

Hyland & Zabriskie, for respondent.

*134Giegerich, J.

This action was brought to recover a balance claimed to be due for commissions upon the sale of the schooner “ Sallie M. Russell,” to one James H. Rogers for $1,600.

The defense was that the plaintiff was not the procuring cause of the sale, and that he did not bring a purchaser ready and willing to purchase said vessel upon the terms named by the defendant. However, after the sale of the schooner, the defendant mailed to the plaintiff the following letter and check, viz.:

> “ Georgetown, Del., *April*8, 1898.

> “ R. S. King, Esq.:

> “ Dear Sir.— I herewith enclose you my check for $25.00. I found the customer you presented wras one who I was already in correspondence with before you commenced communicating at all with me, but owing to the fact you may have not been aware of this I enclose $25.00, please receipt for same.

> “ Tours, &c.,

> “ J.-B. Dorman.”. .

> The check mentioned in the foregoing letter, read as follows:

> “ Draw Bridge, Del., *April*9, 1898.

> “ No. 4146.

> “Farmers Bank of the State of Del.

> At Georgetown.

> “ Pay to Rufus S. King, or order, Twenty-five..............

> oo 1100 Dollars in full to date.

> $25.00.

> John B. Dorman.”

The indorsements on the back thereof were: “ Rec’d on account Rufus S. King; For deposit J. Travers King.”

The plaintiff testified that after receiving said letter, he wrote defendant inclosing a bill for commissions upon the sale of the schooner in question; that $25 was not payment of the same; that he had procured the customer, who informed him that he did not know the defendant nor the vessel above named, and that he demanded the full amount of his commissions. Correspondence followed, in the course of which each party insisted upon the correctness of his own view of the transaction, and on cross-examination the plaintiff testified that he wrote on the back of the check, above *135set forth, the words “ Rec’d on account,” when he collected the same a month after its date.

During the course of the cross-examination of the plaintiff and after the foregoing proofs had been received, the defendant asked for leave to “ amend his answer so as to plead accord and satisfaction.” This was objected to, the motion was denied, and the latter excepted.

There being a dispute as to the amount payable to the plaintiff at the time the check was received by him, his act in making use of the check for a sum which Was less than the amount claimed by him, but which was sent in full payment was to be given effect as evidence in support of an accord and satisfaction, notwithstanding his assertion that he accepted the sum only upon account of the unliquidated demand (Fuller v. Kemp, 138 N. Y. 231; Reynolds v. Empire Lumber Co., 85 Hun, 470), and, therefore, the amendment asked involved a perfectly valid defense, supported by the proof.

The proposed amendment not having been opposed on the ground of surprise, it is clear, under the circumstances, that the court below erred in not allowing it.

It is mandatory upon the Municipal Court of the City of Hew York to allow a pleading to be amended at any time before the trial or during the trial if substantial justice will be promoted thereby. Milch v. Westchester Fire Ins. Co., 13 Misc. Rep. 232, 233; National Cash Register Co. v. Riggs, 22 id. 716, 719.

As was said by Mr. Justice Gildersleeve, who wrote in the case last cited (p. 719), * * * “ It is not wholly within the discretion of the justice to refuse the proposed amendment, but suitors have a right to insist upon the exercise of this power in a proper case.”

It follows from these views that the refusal to permit such amendment was error of so substantial a nature as to require the reversal of the judgment, and it is, therefore, not essential that we specifically consider other points urged by the appellant upon this appeal.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.