Kardonsky v. Tozzi , 228 A.D. 855 ( 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 cheek 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.