McMahon v. Pfister , 39 A.D.2d 691 ( 1972 )

Order, Supreme Court, New York County, entered on November 19, 1971, granting plaintiffs’ reargument and dismissing defense of accord and satisfaction, unanimously affirmed, without costs and without disbursements. The issue is whether an attorney can plead as a defense to his client’s suit to recover for breach of the attorney-client relationship an accord and satisfaction based on the delivery to the client of the client’s own property against payment in full of the attorney^ bills. There is no allegation that the counterclaims asserted against defendant law firm were ever settled or compromised in any manner. A lawyer is a fiduciary of and for his client. The basis of a legal accord and satisfaction is either a settlement and compromise of the amount claimed due or a condition lawfully imposed on the tender of payment. (See Hudson v. Yonkers Fruit Co., 258 N. Y. 168; Car-Lynn Realty Corp. v. Almar Props., 30 A D 2d 808; Haimowitz v. Lorintz, 13 Misc 2d 448.) The property delivered to respondents by appellants was the respondents’ property. To hold that such delivery impliedly establishes an accord as to a client’s claim not then asserted or the subject of dispute is incompatible with the attorney-client fiduciary relationship. (Hudson v. Yonkers Fruit Co., supra.) There can be no accord and satisfaction premised on the return to plaintiffs of their own property. (Haimowitz v. Lorintz, supra.) Concur—Kupferman, J. P., Murphy, McNally and Eager, JJ.