The doctrine of accord without satisfaction is misleading and is, I think, about to be applied erroneously in the case at bar. On principle it applies only to unenforcible agreements intended to take the place of, and, when executed, to constitute satisfaction of an existing claim or obligation by one of the parties against the other. Ordinarily it arises where a party, without any new consideration, agrees to accept performance of an obligation in a manner other than as originally claimed by him; and in such cases there is, of course, no release or cancellation or merger of the original obligation, and enforcement thereof may be had at any time until the agreement, intended as a substitute therefor, but which being without consideration and not binding or enforcible, has not become substituted therefor, is fully performed. In all the cases in which it is held that the unexecuted new promise constitutes an accord only and may be defeated by refusal on the part of the promisee to accept a tender of performance there was no binding agreement obligating the promisee to accept such tender of performance, and the new agreement was revocable at will by either party. (See 1 C. J. 532; Reilly v. Barrett, 220 N. Y. 170; Noe v. Christie, 51 id. 270; Brooklyn Bank v. De Grauw, 23 Wend. 342; Smith v. Cranford, 84 Hun, 318; affd., 155 N. Y. 640; Day v. Roth, 18 id. 448.) As I understand, it, excepting for this confusion to which I have adverted, an agreement made in settlement of a controversy or disputed claim on mutual promises or a new consideration has the same sanctity as any other contract, and in the absence of fraud, duress or undue influence with respect *658to the execution thereof or of a rescission thereof by one party on the ground of failure and refusal to perform by the other, binds both parties, and becomes a substitute for the original claims which are merged therein and extinguished so long as the new agreement remains in force, for there would be no object or purpose in executing such new agreement if it were not intended to extinguish and thus become not only an accord but a satisfaction of the controversy or claim for which it was designed as a substitute; and in such case it does not rest with the promisee, by refusing a tender of performance, to render the agreement nugatory, and each party is entitled to enforce it as made. (Billings v. Vanderbeck, 23 Barb. 546; Spier v. Hyde, 78 App. Div. 151; Reilly v. Barrett, 220 N. Y. 170; Kromer v. Heim, 75 id. 574; Bandman v. Finn, 185 id. 508; Bomeisler v. Forster, 154 id. 229; Morehouse v. Second Nat. Bank of Oswego, 98 id. 503.)
The case presented by the complaint to which the demurrer for insufficiency was interposed is not a mere accord revocable by either party at will but a solemn agreement formally executed under seal and acknowledged in which it is recited that there was an action pending between the parties, brought by the defendant herein against the plaintiff herein to recover $51,470.24 with interest, and that the parties were desirous “ of compromising and settling all matters in dispute between them of every kind and nature whatsoever, including the matters and things embraced in said action,” and it contains material unconditional and unequivocal promises on the part of the plaintiff to pay to the defendant $3,000 per annum in equal monthly installments during her life and to pay her the further sum of $12,500 in cash on the 9th day of December, 1918, and on receipt of said cash payment, which was the first payment to be made by the plaintiff under the agreement, the defendant agreed to assign to him certain policies of life insurance, and to indorse to his order a certain check, and to sign and deliver to the plaintiff a letter retracting and withdrawing derogatory statements theretofore made by her against him and his wife, and to return to him a will which he had theretofore executed and “ all of his books, papers or documents of every kind or nature such as old notes, checks and letters, including all letters heretofore written ” by him *659to her. The agreement contains other covenants on the part of the defendant with respect to her future conduct that are not material to the point presented for decision. The final paragraph of the agreement obligated each party to execute a general release to the other, and obligated the defendant to execute the release both individually and as executrix of the estate of Charles Z. Moers, deceased, and also to execute such a release in favor of the wife of the plaintiff.
It seems to me perfectly plain that said pending action, the prosecution of which is now threatened and is sought to be enjoined by the plaintiff, was merged in that agreement (See Morehouse v. Second Nat. Bank of Oswego, supra), and I am, therefore, unable to agree with the majority of the court that the agreement would not be a defense to that action. Inasmuch as that is the sole ground on which the order is to be reversed I deem it unnecessary to discuss at length the remaining point as to whether the plaintiff is entitled to resort to equity for injunctive relief or for the specific performance of the agreement. Doubtless he could obtain leave to plead the agreement as a defense to said action but that would not constitute a complete determination of the controversies between the parties, and I think it cannot be said on demurrer that in no view of the case would the trial court be warranted in awarding any equitable relief to the plaintiff. (See Bomeisler v. Forster, supra)
I am of the opinion, therefore, that the order is right and should be affirmed, with costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint on payment of said costs.