Marine Midland Bank v. Stukey

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: The record does not establish, as a matter of law, that the claims asserted in the counterclaim of Edwin J. Stukey were intended to be discharged through an accord and satisfaction on October 10,1979 when a new *663note was given representing Mr. Stukey’s obligation to the bank as endorser under the 1969 Fallon note. The court erred, therefore, in granting plaintiff’s motion for a directed verdict and for a dismissal of the counterclaim based on the defense of accord and satisfaction. So much of the order as dismisses the counterclaim of Edwin J. Stukey is reversed and the counterclaim is reinstated. (Appeal from order of Supreme Court, Oneida County, McKennan, J. — dismiss counterclaim.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and Moule, JJ.