#### Julius Mautner et al., Appellants, *v.*Annie Pike et al., Respondents.

(Supreme Court, Appellate Term,

October, 1900.)

1. Accord and satisfaction.

Where a creditor presently and unconditionally agrees to accept certain goods out of his debtor’s stock as payment for an indebtedness for goods theretofore consigned, the presence, on the receipts exchanged by the parties upon the delivery of the goods, of the words “ On storage only ” will not prevent the transaction from working an accord and satisfaction where these words are found by the jury as intended only to reserve to the creditor, who was about to go abroad, the right later to examine the goods in order to determine whether they were the ones he had agreed to accept.

2. Costs — Notice of motion for extra allowance unnecessary.

Notice of a motion for an extra allowance need not be given to the attorney for the defeated party where the motion is made before the judge who tried the case and on the next day after the trial.

Appeal by the plaintiffs from a determination of the General Term of the City Court of New York, affirming a judgment rendered in favor of the defendants after a trial before a jury.

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

Eugene Cohn and Julius Levy (Eugene Cohn, of counsel), for appellants.

Greenhall *&*Levy (Charles L. Greenhall, of counsel), for respondents.

Giegerich, J.

The defendants, as copartners, owed the plaintiffs for goods consigned at various times. Being unable to pay cash in discharge of this indebtedness, they invited one of the plaintiffs to their place.of business and explained the situation to him and he agreed to take goods instead of money. The defendants pleaded the plaintiffs’ agreement to take specified goods and the delivery of those goods in pursuance of that agreement as an accord and satisfaction.

*501The pivotal question of the case is whether there was such an agreement or whether the agreement made was merely one to take goods to he selected and determined upon later. It was left to the jury to answer the question, “Was or was not that agreement made that these three cases of goods should he accepted in full accord and satisfaction of the plaintiffs’ claim? ” The jury answered this question in the affirmative by bringing in a verdict in favor of the defendants and the only question for this tribunal is whether there was any evidence upon which to base such a verdict.

Some of the evidence on this point is as follows: The defendant Pike testified, “We then took Mr. Mautner around and showed him what kind of goods were there, and he saw the goods and said he would take the goods in return for his claim. And we then packed up three cases of goods and sent them over to Mr. Mautner’s place.” The defendant Schuloff testified as follows: “ We showed him (Mautner) what we had and what we had at that time, some martins or skunks, which were not his own goods, and we gave him those and some other goods, and he knew about the price within five cents or ten cents, as he is in the same business, and the bookkeeper wrote out a certain paper or memorandum or bill, of which this is tHe identical copy here; and we packed the goods and sent them over.” This memorandum was put in evidence and was delivered with the goods. Ehrlich, the bookkeeper and manager of the defendants, testified: “He (Mautner) finally agreed to take those goods. * * * He said that the goods should be packed up, and sent to his place, which was done.” While the testimony above quoted leaves something to be desired in point of definiteness and precision, still, we do not think that this court would be justified in reversing the judgment on*the ground that there is no evidence of an agreement to take specific goods. The appellants urge that the presence of the words, “ On storage only,” written upon the receipts which were exchanged at the time the goods were delivered to them, shows conclusively that there was no agreement existing to take those goods in satisfaction of the indebtedness. The defendants, however, explain this apparent discrepancy by saying that Mr. Mautner said, when the goods were delivered, that he was about to go to Europe and that when he came back he' would look the goods over and see if they were all right. Under the circumstances, we think the de*502fendants gave a satisfactory explanation of the presence of those words on the receipts, which is that they were intended to reserve to the plaintiffs the right to examine the goods in order to ascertain if.they were the ones he had selected and agreed to take.

The appellants argue that, even if they did make an agreement to take these specified goods in satisfaction of their claim, they were, nevertheless, under the authorities, at liberty to recede frothis agreement at any time before final delivery and acceptance. Brooklyn Bank v. De Grauw, 23 Wend. 342; Day v. Roth, 18 N. Y. 448; Kromer v. Heim, 75 id. 574. On this point, it is enough to call attention to the plaintiffs’ request to the court to. charge “ that, in order to make an accord and satisfaction binding, there must be a final agreement that the plaintiffs will accept, and if there was any condition, intention, or any agreement that the plaintiffs should have a further opportunity of withholding their assent, that there was not an accord and satisfaction.” This request the court granted. The appellants must abide by the law of the case, as settled by this instruction, which they themselves requested.

The appellants are wrong in their contention that the testimony, as to the kind of goods the defendants had on hand at the time the interview in question took place, called for purely collateral evidence and that the defendants were, therefore, bound upon that point by the testimony which they had elicited upon cross-examination from the plaintiff Mautner, they having passed the bounds of strict cross-examination, and made him their own witness on an independent matter. The responses were not upon a collateral matter, but were material and directly in issue. The case hinged upon the question whether there was an agreement to take specific goods, and this testimony went directly to that point, and being upon a material issue, the defendants were at liberty to produce other evidence upon the point, although such evidence did contradict the testimony of the plaintiff Mautner upon his cross-examination.

The appellants’ counsel also contends that the extra allowance should be stricken from the judgment on the ground that it was not made until the day after the trial and in his absence and without notice to him. The respondents rely, in support of their practice, upon Mitchell v. Hall, 7 How. Pr. 490, where the court, at page 491, said: “When the allowance is made by the judge *503who tries the cause, at the same term, notice is not necessary; nor need the party against whom it is made be present in court. It is usual, so far as my experience goes, to ask for it when the verdict comes in, and for the judge to grant it then or during the circuit, without hearing counsel. It would be intolerable if a judge were bound to listen to affidavits and arguments upon every such question that arises. When the cause is tried before him, he obtains all the information from the trial itself which can be of any value on the subject.” The views there expressed are applicable to the present case. The case of Woodruff v. New York, Lake Erie & Western R. R. Co., 10 N. Y. Supp. 305, cited by the appellants, was a very different one. The judge there said (p. 310): “The granting of the allowances without notice was the result of misapprehension. The order will therefore be that the orders heretofore entered be vacated and set aside, and that a referee be appointed to take proof and determine the amount of the several sums to be allowed to the persons thereto entitled.” In the present case, it does not appear that the want of notice prejudiced the appellants’ position, or that there was any circumstance whatever affecting the propriety or the amount of an allowance that was not already within the knowledge of the judge who tried the case.

The judgment should, therefore, be affirmed, with costs.

Beekman, P. J., and O’Gorman, J., concur.

Judgment affirmed, with costs.