The sole question involved in this appeal is whether the acceptance of a check by the plaintiff was an accord and satisfaction of the claim in dispute.
The defendant, as attorney for the plaintiff, collected a judgment which, exclusive of the costs to which the defendant was admittedly entitled, amounted to $372.62. He sent to the plaintiff $166.86, retaining the balance for services rendered, as he claims, in other matters. The money was remitted to the plaintiff by defendant’s check and accompanying it was a receipted statement and a letter. The only material portion of the letter is the first paragraph in which the defendant writes: “ Inclosed' you will find a statement of account, my receipted bill for professional services since our last settlement and a check for $166.86, being the balance due you.” It does not appear that the check *773bore any declaration or even indication that it was intended in full settlement. Promptly upon receipt of letter and check the plaintiff called upon the defendant. There is a marked conflict between them as to what occurred at the interview then had. The plaintiff emphatically claimed the entire amount, $372.82, insisting that the defendant had been paid in full and had no right to retain any portion of the money collected. The plausibility of hia version of that interview is borne out by a paper signed by the defendant, a few months prior to the delivery of the check, in' which the defendant obligated himself, among other things, to pay to the plaintiff forthwith, upon receipt, the money in dispute, against which he therein declared that he had not and would not assert any lien.
The defendant, on the other hand, maintains that at that interview he offered the plaintiff the alternative of returning the check or retaining it in full settlement, and that the plaintiff elected to retain it, thus, determining the unliquidated, amount due the defendant for the professional services enumerated in the receipted’ statement.
If the defendant’s story be accepted, a valid accord and satisfaction would be established. The plaintiff, however, denies both the offer by the defendant and the acceptance by him of any alternative. The jury, on submission, solved that conflict favorably to the plaintiff.
The verdict of the jury places before us the story of the plaintiff as the one to be tested according to the legal principle^ applicable to the defense of accord and satisfaction. The essential elements of that defense are a new agreement and its performance. There must be an executed contract founded upon a new consideration. Nassoiy v. Tomlinson, 148 N. Y. 326, 331. The accord, which is the substitution for the old contract, must be either an express agreement or implied from the acts of the acceptor of the tender or payment. Fuller v. Kemp, 138 N. Y. 231; Lestienne v. Ernst, 5 App. Div. 373. In the case at bar there was an express disavowal of any agreement or assent on the part of the plaintiff, and unless an implied agreement can be inferred from the conceded facts there was no accord. The only fact from which such an inference could be drawn is the retention by the plaintiff of the receipted statement and of a check which was not coupled with any condition that it should be received in full payment. That isolated fact is insufficient to meet the requirements of an *774accord and, in connection with the surrounding circumstances, strips the defense of all merit.
The judgment must, therefore, be affirmed.
Freedman, P. J., and MacLean, J., concur.
Judgment affirmed, with costs to respondent.