#### Richard L. Brewster, Respondent, *v.*Samuel J. Silverstein, Appellant.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Accord and satisfaction—what constitutes — unliquidated claim—landlord and tenant.

The rule, that where the amount of an indebtedness is undisputed, payment of a less sum than is claimed to be due does not constitute an accord and satisfaction, has no application where the debtor has a claim for damages against the creditor.

In such case, though the amount of the creditor’s claim is undisputed, the fact that the debtor claims to be entitled to an offset renders the whole claim unliquidated and the subject of an accord and satisfaction.

After a dispute as to whether the landlord had complied with his covenant to repair demised premises rendered untenantable by fire, the tenant sent him a check stating on its face that it was in full of all claims, and a letter which stated that the amount named in said check was the amount of the rent up to the day of the fire and that he considered the relation of landlord and tenant terminated. The landlord returned the letter immediately with a statement that he declined to accept the amount named in the check in full satisfaction of his claim for rent. The tenant returned the check to the landlord with a note that he might accept or reject said check. The landlord replied that he accepted it in part payment for rent, and collected the money on it though the tenant immediately on receipt of the last letter again wrote the landlord that the check was given only in full payment of all claims, and that upon the acceptance and deposit thereof he should consider the transaction ended and his liability under the lease terminated. Upon the trial of an action to recover the rent for the month in which the fire occurred, and the succeeding month, defendant claimed that the facts constituted an accord and satisfaction, or at least was sufficient to require the court to submit to the jury the question whether or not there had been an accord and satisfaction. Held, that the denial of defendant’s motion to go to the jury on that question, with the direction of a verdict in plaintiff’s favor, was reversible error.

Whether or not there was a *bona fide*dispute between the parties was a question of fact, and if the jury found that there was such a dispute all the elements necessary to establish an accord and satisfaction were present and their verdict should have been for defendant.

*124Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, ninth district, rendered in part upon direction and in part upon the verdict of a jury in favor of the plaintiff.

Burnstine *&*Geist (Jos. G. Cohen, of counsel), for appellant.

Arthur D. Greenfield and Thomas G. Prioleau, for respondent.

Seabury, J.

The plaintiff sues to recover rent for the months of December, 1910, and January, 1911, for a loft owned by him and occupied by the defendant as tenant under a written lease for a period of two years, at the monthly rental of $113.33, payable on the first day of each month. In the lease, the lessor'covenanted that, in the event of damage to the demised premises by fire, he would repair the damage forthwith. On December 12, 1910, the said premises were damaged by fire to an extent rendering them untenantable. A dispute arose between the landlord and the tenant as to whether the landlord complied with the terms of the lease as to repairing the damage. The landlord insisted that he was complying with this provision of the lease, and demanded the rent. The tenant claimed that the failure of the landlord to repair the premises constituted such a breach of this covenant of the lease as to give him a claim against the landlord for the damages which he suffered. On December 23, 1910, the defendant sent the landlord a check for fifty-three dollars and forty cents, which check stated upon its face that it was in full payment of all claims. The defendant’s letter, which accompanied the check, stated that the amount of fifty-three dollars and forty cents was the amount of rent for the demised premises up to December 12, 1910, the day of the fire, and that he considered the relation of landlord and tenant terminated. The check inclosed in this letter the plaintiff immediately returned, with a statement that he declined to accept the amount named in the check in full satisfaction of his claim for rent. The defendant returned the check to the *125plaintiff with a note informing the latter that he might accept or reject it, as he saw fit.' To this letter the plaintiff replied that he accepted the check in part payment for the December rent, and collected the money upon it, although the defendant, immediately on receipt of the last letter from the plaintiff, again wrote the plaintiff that the check was given only in full payment of all claims, and that, if the plaintiff accepted and deposited the check, the defendant should consider such action as ending the transaction and terminating his liability. Upon the trial, the defendant claimed that the facts recited above constituted an accord and satisfaction, or that, at least, these facts were sufficient to require the court to submit to the jury the question whether or not there had been an accord and satisfaction. The learned court below took a different view of the case, denied the motion of the defendant to go to the jury, and directed a verdict for the plaintiff for the full amount of his claim. From the judgment entered upon this verdict, the defendant appeals to this court. Whether or not there was a *tona fide*dispute between the parties was a question of fact which should have been submitted to the jury. If the jury found, as it seems to us they might well have found, that there was such a dispute, all the other elements necessary to establish an accord and satisfaction were present, and their verdict should have been for the defendant. The respondent urges that the debt due the plaintiff was liquidated and certain, and that, therefore, a payment by the debtor of a less sum did not constitute an accord and satisfaction. This rule, however, does not apply where the debtor has a claim for damages against the creditor. In such cases, although the amount of the creditor’s claim is not disputed, the fact that the debtor claims to be entitled to an offset renders the whole claim unliquidated, and as such the subject of an accord and satisfaction. Jackson v. Volkening, 81 App. Div. 36; affd., 178 N. Y. 562; Fuller v. Kemp, 138 id. 231; Laroe v. Sugar Loaf Dairy Co., 180 id. 371; Uvalde Asphalt Paving Co. v. City of New York, 99 App. Div. 327. When the defendant tendered his check to the plaintiff in full satisfaction, the latter was not obligated to accept it. He could do one of two things: either return *126it, or accept it upon the conditions specified. He could not retain the check and repudiate the condition upon which it was offered. Fuller v. Kemp, *supra;*Logan v. Davidsin, 18 App. Div. 356; Nassoiy v. Tomlinson, 148 N. Y. 326; Komp v. Raymond, 175 id. 102; Hand v. Supreme Council R. A., 44 App. Div. 487; Lewinson v. Montauk Theatre Co., 60 id. 576; Jones v. Keeler, 40 Misc. Rep. 224; Williams v. Bienenzucht, 54 id. 211; Frieberg v. Moffett, 91 Hun, 20. The evidence presented a question of fact which the jury, under proper instructions, should have been allowed to pass upon, whether or not the check was accepted under circumstances constituting an accord and satisfaction.

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

Guy and Bijub, JJ., concur

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