#### The Ivy Court Realty Company, Appellant, *v.*Robert Russell Knapp, Respondent.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Accord and satisfaction — payment of admitted liability — landlord and tenant — evidence.

The payment of an admitted liability is not a payment or a consideration for an alleged accord and satisfaction of another independent alleged liability.

In an action on a written lease to recover rent for June, July, August and September, 1911, the answer, after a denial of the lease, pleaded as separate defenses an accord and satisfaction and a surrender and acceptance. On the trial the lease signed by defendant was received in evidence and it appeared that during April or May, 1911, defendant told plaintiff’s agent that he had had “ a lot of sickness,” was financially embarrassed and unable to pay the rent, and after the agent had refused, on request, to accept a surrender of the lease defendant moved. In February, 1912, on threat of plaintiff’s attorney to issue a garnishee execution against defendant’s salary on a judgment recovered against him for the rent of May, 1911. the judgment, the exact amount of *261which does not appear, was paid and settled for fifty dollars, the receipt therefor reciting that said payment was in full settlement of same. ' When the receipt was produced on the trial of this action defendant objected, and his attorney struck out the word “ same ” and inserted “ all rent,” and testified that he knew of no other claim for rent against defendant than that merged in the judgment. Held, that, it being conceded that there were more than fifty dollars due at the time of its payment upon the judgment, the transaction did not constitute an accord and satisfaction, and that defendant’s own testimony established a refusal to accept a surrender.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, in favor of the defendant after a trial by the court without a jury.

Louis E. Felix, for appellant.

Harold C. Knapp, for respondent.

Page, J.

This action was brought to recover rent for the months of June, July, August and September, 1911, at the rate of fifty-five dollars a month. The answer denies that the defendant ever entered into any agreement of lease as alleged in the complaint, and that he still remains in possession of the premises and sets up as separate defenses an accord and satisfaction and a surrender' and acceptance. The trial justice gave judgment for the defendant. The facts ■ are substantially as follows, treating every contested fact as settled in the defendant’s favor. The written lease signed by the defendant was received in evidence and no attempt made to substantiate the denial thereof in the answer. During the month of April or May the defendant informed the plaintiff’s agent, that he had *“*a lot of sickness ” that he was financially embarrassed and unable to pay the rent and asked to be released from the lease. The agent declined to release him and he moved. An action was brought against him for the May rent and judgment was recovered for fifty-five dollars rent, together with interest and costs, on June 15, 1911. The exact amount of the judgment was not stated upon the record in this trial. In February, 1912, the plain*262tiff’s attorney threatened to issue a garnishee execution against the salary of the defendant, and defendant proposed to pay fifty dollars in settlement of all claims against him. This proposition the attorney accepted, and the following receipt was prepared:

> “ Received from Russell R. Knapp the sum of Fifty ($50) dollars, receipt whereof is hereby acknowledged, in full payment and settlement of the judgment heretofore entered by the Ivy Courts Realty Company against the said Russell R. Knapp by reason of the amount due therein for rent, etc., said payment being in full settlement of same.

> “(Signed) Ivy Courts Realty Co., “By ‘Sophian, *Manager*

When plaintiff’s attorney produced this receipt defendant objected and the attorney struck out the word “ same ” and inserted “ all rent.” What authority he had to alter a receipt signed by another is not obvious. And he testifies that at that time he knew of no other claim for rent against the defendant than that merged in the judgment. It is this payment upon which the defendant relies to establish an accord and satisfaction of the claim for $220, the four months’ rent in this suit, which was subsequently brought.

It is conceded that there were more than fifty dollars due at the time of this payment upon the judgment. Therefore, giving the defendant’s testimony full effect, the transaction would not constitute an accord and satisfaction.

The judgment was a fixed and liquidated claim which the defendant was under obligation to pay, entirely separate and distinct from the claim for the four months’ rent, and it is well settled, as stated in Mance v. Hossington, 205 N. Y. 33, 36, that “The payment of an admitted liability is not a payment of or a consideration for an alleged accord and satisfaction of another independent alleged liability. Ryan v. Ward 48 N. Y. 204; Nassoiy v. Tomlinson, 148 N. Y. 326; Laroe v. Sugar Loaf Dairy Co., 180 N. Y. 367. An accord and satisfaction requires a new agreement and the performance thereof. It must be an executed contract founded upon a new consideration. Nassoiy v. Tomlinson, *supra;*
      *263Jaffray v. Davis, 124 N. Y. 164; Kromer v. Heim, 75 N. Y. 574; Fuller v. Kemp, 138 N. Y. 231.” In the case of Manee v. Hossington, a receipt had been given in the following form: *“*Received of G. A. Hossington $17.00 in full of all accounts and demands to date.” It was shown that there was a conceded balance due and unpaid for services of that amount, and it was held that such payment was not an accord and satisfaction of another disputed and unliquidated claim existing prior to the date of the receipt. Defendant in the case at bar testified that he borrowed the money from his employer, and from this his counsel seeks to argue that the payment was made by a third person. There is nothing in this contention. It makes no difference from what source the defendant procured the money, it was his payment of an obligation which he was bound to pay. The evidence does not establish a surrender and acceptance thereof. On the contrary defendant’s own testimony establishes a refusal to accept a surrender.

The judgment should, therefore, be reversed with costs to appellant, and judgment directed for the plaintiff for $220, with interests and costs.

Seabury and Lehman, J. J., concur.

Judgment reversed with costs to appellant, and judgment directed for plaintiff, with interest and costs.