This action was brought to recover a. sum alleged to be due for commissions on sales made by the plaintiff for the defendants, between 1890 and the close of the year 1893. The plaintiff had a verdict, and from the judgment entered thereon defendants appealed. But one question is presented which calls for a review by this court, and that is, whether the delivery of a' certain check to the plaintiff, the receipt and subsequent use of it by him, amounted in law to an accord and satisfaction. The' defendants contend that it did, and that, therefore, the trial court' erred in .denying the motion, made at the close of the evidence, to dismiss the complaint.
The transaction, as detailed by the plaintiff, of the receipt and subsequent use of the check by him, was substantially this: That he went to the defendants’ office near.the close of the year 1893, and . asked them for the balance then due him; • that the defendants thereupon directed their bookkeeper to, and he did, make up a statement and hand it to the plaintiff; that he then handed it to one of the defendants, at the same time saying that it did not correctly show his balance. The defendants made no reply, but, instead, again handed him the statement, together with a check for the amount called for by it; that the plaintiff then said, “ This is not the balance of my account and you know it; ” to which the defendant Mosbacher replied, “ That is what you are going to get; you can take it or leave it.; if you want any m.ore you can sue me,” and the plaintiff replied, “ I will sue you. I accept this thing as a part payment of what you owe me.” If the jury believed this testimony; then the acceptance and subsequent use of the check by. the plaintiff' clearly did not amount to an accord and satisfaction, because the check was neither delivered to the plaintiff nor accepted by him with the intent on the part of either of the parties that it should be so considered. On the contrary, the right to bring an action to recover the balance alleged to be due was expressly reserved to the plaintiff. In this connection it is also to be noted that the defendant Mosbacher testified that, when the check was handed to the plaintiff, he asked him for a receipt in full, which he declined to give. To make out the defense here relied upon, says the Court of Appeals, “the proof must be clear and unequivocal that the observance of the condition was insisted upon, and must not %dmit of the inference that the debtor *169intended that his creditor might keep the money tendered in case he did not assent to the condition upon which it was offered.” (Fuller v. Kemp, 138 N. Y. 231.) The trial court could not say that the proof in this case came up to this requirement. It was a question for the jury to determine whether the check was delivered to the plaintiff upon the condition that its acceptance and use by him was a payment in full, and they have found that it was not, and their finding is sustained by the evidence.
The judgment should be affirmed, with costs. ■
Van Brunt, P. J., Patterson and Ó’Brien, JJ., concurred.