First Department, June, 1909. [Vol. 132. with knowledge, consisted apparently of the overlapping upon plaintiff's premises of the ornamental and non-essential portions of the stoop and portico of the adjoining house, apparently not of a character to found upon it a claim of title to any part of the fee of plaintiff's premises, but perhaps sufficient for the foundation of a claim to the right of support. Whether such encroachments would in point of fact render plaintiff's title unmarketable is perhaps a question (Van Ilorn v. Stuyvesant, 50 Misc. Rep. 432), but it is apparent that they might to some degree interfere with the free development and improvement of the property, and to that extent might affect its market value. At all events, it was due to the plaintiff that she should be advised of the exact character and nature of the encroachments, to the end that she might be able intelligently to determine whether or not she would accept title to the property incumbered by these encroachments. The only advice or information upon the subject, so far as appears, which the defendant communicated was that contained in the letter above quoted. Clearly, that letter was not calculated to convey to the lay mind the true facts of the case. It is true that the letter states that the survey shows variations between the locations of the fences, stoops and record lines. It does not state what these variations are, and what follows in the letter was calculated and no doubt intended to lead plaintiff to believe that whatever variations were found were of slight importance, or of none at all, and did not affect the marketability of the title. This letter falls far short of informing plaintiff of or even suggesting to her the true state of the encroachments upon the property. Upon the complaint as it stands, the first count, as we think, sufficiently alleges negligence and a failure of duty upon the part of defendant. The second count seeks to charge defendant upon its contract liability as insurer, and involves many of the same considerations which apply to the first cause of action. The policy insures plaintiff against "any defect or defects of title affecting said premises or affecting the interest of the assured therein, or by reason of unmarketability of the title or by reason of liens or incumbrances at the date of the policy, excepting as the policy might save or exempt." The encroachments described in the complaint, with the right of continued support so long as they might stand, undoubtedly App. Div.] First Department, June, 1909. constituted an incumbrance upon the property referred to in the policy, for they were matters which might interfere with or prevent the free use and improvement of the property by the owner, and which the owner could not at will remove, and they are not in our opinion exempted from the operation of the policy by the words contained in the exemption clause, " variations between the location of the fences and stoops and the record lines," for this clause makes no reference to the door cap and pilaster, which also overlap and encroach. It is objected that the complaint does not sufficiently allege damage. It contains as to each cause of action the general allegation that by reason of the premises the plaintiff has suffered damage in the sum of $12,608, with interest. It is true that the plaintiff does not allege in her complaint any facts upon which the amount of her damage can be estimated. It is not necessary that she should do so, for her general allegation of damage is sufficient to permit proof of such damage as is the naturally and legally presumable consequence of the injury done her. (Laraway v. Perkins, 10 N. Y. 371.) She is entitled to recover the difference between the value of the property when purchased, as it was with the encroachments, and its value as it would have been if there had been no such encroachments. (Kidd v. McCormick, 83 N. Y. 391.) Whether or not there was any such difference is, of course, a matter of proof; but if it should be established that there was a difference, the allegations of the complaint are sufficient to permit its recovery. The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event. MCLAUGHLIN, CLARKE and HOUGHTON, JJ., concurred. INGRAHAM, J. (concurring): I do not think that the letter of December 23, 1904, can be treated as giving to the plaintiff an independent cause of action. It was simply a letter that the title had been examined; that a policy would be issued which should insure the plaintiff's title to the prop erty with certain exceptions; and the plaintiff's subsequent acceptance of the policy of insurance issued by the company was an acceptance by the plaintiff of the obligation of the defendant which it assumed by its letter. I think, therefore, the liability of the defendant must depend upon the terms of the policy subse First Department, June, 1909. [Vol. 132. quently issued and accepted by the plaintiff, and that a recovery upon the first cause of action could not be sustained. Upon the second cause of action I am inclined to agree with Mr. Justice Scort that a cause of action was stated, and that it was error to dismiss the complaint. I also agree with his statement as to the measure of damages. I, therefore, concur in the reversal of the judgment. Judgment and order reversed, new trial ordered, costs to appellant to abide event. FLORENCE L. GOFFE, Appellant, v. ARTHUR S. H. JONES, Respondent. First Department, June 4, 1909. Contract-accord and satisfaction - pleading - allegations stating accord without satisfaction - conclusions of law. It is no defense to an action brought by the holder of a promissory note to allege that prior to the action the defendant maker denied his liability and that thereupon the claim was compromised by an agreement with the holder “to pay" certain sums with interest, and that he paid part of the sums agreed upon, but that the plaintiff refused to receive the balance. This, because an agreement to pay money in the future in settlement of a claim is not an accord and satisfaction but an accord merely, and the original contract remains in force. An allegation that the plaintiff's cause of action on the note was by said agreement compromised and settled is a conclusion of law, not admitted by demurrer. APPEAL by the plaintiff, Florence L. Goffe, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of February, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff's demurrer to a portion of the amended answer. Vincent P. Donihee and Edward S. Hatch, for the appellant. Henry W. Showers, for the respondent. SCOTT, J.: The plaintiff appeals from an interlocutory judgment overruling a demurrer to a separate defense. App. Div.] First Department, June, 1909. The action is upon a promissory note for $10,000, upon which it is alleged that $7,717.65 with interest remains unpaid, for which amount judgment is demanded. The third separate defense to which the demurrer is interposed alleges the making and delivery of the note; that subsequent to the maturity thereof and before the commencement of this action plaintiff demanded the payment thereof, which defendant refused upon the ground that he was not lawfully indebted to plaintiff in any sum whatever. The defense then proceeds as follows: "That thereupon, and on or about the 29th day of July, 1904, the plaintiff and the defendant agreed to compromise the plaintiff's said claim, and agreed that in compromise thereof the defendant should pay the plaintiff one thousand ($1,000) dollars in cash, and commencing with September, 1904, to pay one hundred ($100) dollars a month for forty (40) months. In addition to that sum, on October 1st, defendant was to pay four hundred ($400) dollars." There is also alleged an agreement to pay interest on the unpaid sums from time to time. It was further alleged that defendant had made all the payments agreed upon down to June, 1907, and had attempted to pay the $100 falling due in June, 1907, but plaintiff had refused to receive it. Defendant's readiness and willingness to make the payments as they fell due was alleged. It will be observed that the compromise agreement as alleged is that it was agreed that in compromise of plaintiff's claim defendant should pay certain sums in the future. That is to say, the payment of the sums agreed upon should constitute the completed compromise. This does not allege an accord and satisfaction, but merely an accord without satisfaction under which the original promise remains in force. A very similar attempt at an accord came before the Court of Appeals in Kromer v. Heim (75 N. Y. 574). In that case plaintiff had recovered a judgment against the defendant for upwards of $4,000. Pending a stay a stipulation was entered into under which plaintiff agreed to accept in settlement of the judgment $1,000 in cash, $250 down and the balance in installments, with merchandise to be delivered in amounts stated, sufficient with the cash payments to reduce the judginent to $1,000, and an assignment of certain patents. Defendant made the cash payments and delivered the merchandise as stipulated until the judgment was APP. DIV.-VOL. CXXXII. 55 First Department, June, 1909. [Vol. 132. reduced to $1,000, and then tendered an assignment of the patents, which plaintiff declined to accept but issued execution to collect the balance. The defendant's motion to set aside the execution and satisfy the judgment was denied, the court saying: "Accord,' says Sir Wm. Blackstone, 'is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon this account' (3 Bl. Com. 15). An accord executory without performance accepted is no bar; and tender of performance is insufficient (Bac. Abr. tit. Accord and Satisfaction, C). So also accord with part execution cannot be pleaded in satisfaction. The accord must be completely executed, to sustain a plea of accord and satisfaction (Bac. Abr. Accord and Satisfac tion, A; Cock v. Пonychurch, T. Ray. 203; Allen v. Harris, 1 Ld. Ray. 122; Lynn v. Bruce, 2 H. Bl. 317). In Peytoe's Case (9 Co. 79), it is said, ' and every accord ought to be full, perfect and complete; for if divers things are to be done and performed by the accord, the performance of part is not sufficient, but all ought to be performed.' * * * "The doctrine which has sometimes been asserted, that mutual promises which give a right of action, may operate and are good, as an accord and satisfaction of a prior obligation, must, in this State, be taken with the qualification that the intent was to accept the new promise, as a satisfaction of the prior obligation. Where the performance of the new promise was the thing to be received in satisfaction then, until performance, there is not a complete accord; and the original obligation remains in force. (Russell v. Lytle, 6 Wend. 390; Daniels v. Hallenbeck, 19 id. 408; Hawley v. Foote, Id. 516; The Brooklyn Bank v. De Grauw, 23 id. 342; Tilton v. Alcott, 16 Barb. 598.) * * * "The judgment clearly was to remain in force until the satisfaction under the new agreement was complete. It is the case of an accord partly executed. So far as the plaintiff accepted performance his claim was extinguished. So far as it was unexecuted the judgment remained in full force; and however indefensible in morals it may be for the plaintiff to refuse to abide by the agreement in respect to the patent interests, he was under no legal obligation to accept the assignment tendered, and he had the legal right to enforce the judgment for the balance remaining unpaid.” |