¶1(dissenting):
¶2I am of opinion that there was an accord and satisfaction. The plaintiffs had a claim against the defendant on an express contract for the sale and delivery of merchandise at a fixed price, but the defendant, evidently in good faith, claimed an offset on the ground that the goods delivered and received and retained by him were not of the agreed quality. The amount of the defendant’s offset was clearly unliquidated for the plaintiffs did not concede that the defendant was entitled to any offset or deduction on account of the quality of the goods. In these circumstances the defendant sent the plaintiffs a check for the balance of the contract price of the goods *835less the amount which he was willing to accept in settlement of the unliquidated offset or counterclaim without litigating the question upon condition that his check be accepted in full settlement. The check was received, retained and used by the plaintiffs and they brought this action to recover the balance of the contract price, which the defendant thus deducted under his claim of a right to an offset. It is not claimed by the defendant, as in Windmuller v. Goodyear Tire & Rubber Co. (123 App. Div. 424), upon which reliance is principally placed in the prevailing opinion, that there was an express agreement with respect to the amount which the defendant should be entitled to deduct if the goods were not of the agreed quality. In that case the defendant was not in a position to claim in the event of litigation that it was entitled to a greater deduction than it conceded by the settlement, for it made the deduction according to what it claimed was pursuant to an express warranty with an agreement with respect to the precise amount to be deducted in the event of a breach of warranty. Here if the settlement tendered by the defendant had not been agreed upon by the plaintiffs and they brought action the defendant might have claimed and shown a setoff or counterclaim greater than the amount which he deducted as a condition of the settlement. It seems to me, therefore, perfectly clear under all of the authorities that the acceptance and use by the plaintiffs of the defendant’s check constituted an accord and satisfaction. (Jackson v. Volkening, 81 App. Div. 36; affd., 178 N. Y. 562; St. Regis Payer Co. v. Tonawanda Co., 107 App. Div. 90; affd., 186 N. Y. 563; Ravenswood Paper Mill Co. v. Dix, 61 Misc. Rep. 235; Brewster v. Silverstein, 78 id. 123; Dobbs v. Prudden-Winslow Co., 95 id. 250.)
¶3I, therefore, vote for affirmance.
¶4Determination reversed and judgment of Municipal Court affirmed, with costs to plaintiffs in this court and in the Appellate Term.