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Muehlstein Co. v. Airway Cleaners

Supreme Court, Appellate Term, First Department
Apr 2, 1959
17 Misc. 2d 941 (N.Y. App. Term 1959)

Opinion

April 2, 1959

Appeal from the City Court of the City of New York, New York County, EMILIO NUNEZ, J.

Henry Gallop and S. Frederick Placer for appellant.

Eisman, Lee, Corn, Sheftel Bloch ( J.B. Sheftel of counsel), for respondent.


The judgment and order should be affirmed, with costs, but as we arrive at our conclusion on somewhat different grounds than that expressed by the court below the following brief statement is made. The only issue is the validity of the defense of accord and satisfaction. As the accord pleaded was executory it required either a writing or consideration. There was no writing. The consideration claimed was the settlement of a bona fide dispute as to the quality of the goods delivered. If there was such a dispute, the consideration would be ample. But there was none. The sales orders contained a term that claims must be made in 30 days. None was made within that period. It is true that an unreasonable provision for examination and claim will not be given effect ( Jessel v. Lockwood Textile Corp., 276 App. Div. 378). This provision was reasonable. Without a dispute there was no consideration, and without consideration or writing there was no enforcible accord (Personal Property Law, § 33, subd. 2).

Concur — STEUER, J.P., HOFSTADTER and HECHT, JJ.

Judgment and order affirmed, etc.


Summaries of

Muehlstein Co. v. Airway Cleaners

Supreme Court, Appellate Term, First Department
Apr 2, 1959
17 Misc. 2d 941 (N.Y. App. Term 1959)
Case details for

Muehlstein Co. v. Airway Cleaners

Case Details

Full title:H. MUEHLSTEIN CO., INC., Respondent, v. AIRWAY CLEANERS DYERS, INC.…

Court:Supreme Court, Appellate Term, First Department

Date published: Apr 2, 1959

Citations

17 Misc. 2d 941 (N.Y. App. Term 1959)
186 N.Y.S.2d 974

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