BERNSTEIN against DEMMLER

BERNSTEIN against DEMMLER. Supreme Court, First District; Special Term, April, 1870. ■ Canceling- Satiseaotion-piece.—Inadvertent Omission oe Interest. \ffcer the parties had agreed on "settling a judgment, the attorney for the creditor gave, on the debtor’s request, a. memorandum of the amount claimed, from which he inadvertently omitted interest; and subsequently gave a satisfaction-piece on receiving payment of the amount he had specified. Held, that his motion to vacate the satisfaction-piece should be granted, unless the interest be paid. Motion to vacate satisfaction-piece. This action was brought by Gustave Bernstein against Lansing Demmler. The plaintiff’s attorney moved to vacate a satisfaction-piece he had given, upon an affidavit stating the following facts : That after the affirmance thereof, defendant’s attorney offered to settle the judgment, but deponent told Mm no settlement other than full payment could be made. That on a specified day, the defendant personally called on deponent, stating that, on that day the judgment and costs would be fully paid, and that thereafter defendant’s attorney sent to deponent a note of inquiry of the amount to be paid herein; that deponent sent a memorandum of the amount, but minuted only the amount of the judgment and the amount of the costs of affirmance, and omitted inadvertently to minute the interest on the judgment between the date of its entry and the day of payment, amounting to one hundred dollars; that in deponent’s absence, his law partner, Mr. Morrison, was waited upon by Mr. Hammersley, and basing the amount upon deponent’s memoranda, said Morrison accepted a check for the amount of the memoranda ; that while the check was being certified, deponent returned to the office and prepared, at Ms own suggestion, for defendant, a satisfaction-piece of the judgment; that when the check was handed to deponent, he did not look at its amount, supposing that Mr. Morrison had fixed the amount, until immediately after the defendant and his attorney had left the office, when deponent discovered the error that had been made, and immediately sought for Mr. Hammersley, but failing to find Mm, sent him a note informing him of the error, and requesting Mr. Hammersley, defendant’s attorney, to send Mm the amount. That subsequently deponent met said Hammersley and asked him to send him the amount of interest inadvertently omitted; but Mr. Hammersley, while giving no satisfactory or direct answer as to whether he would or would not, told deponent he must take whatever course he thought necessary in the matter. Deponent further says, that there was no intention, agreement or .understanding whatever that the interest should be waived, or that anything less than plaintiff was entitled to should be given or taken, and that the neglect of charging the interest was purely the result of inadvertence, and was an oversight of deponent. Lauterbach & Springarn, for the motion. Mr. Hammersley, opposed. [MAJORITY — Brady, J.] Brady, J. This is a meritorious motion, and the plaintiff must have a remedy. The satisfaction-piece must be declared inoperative, unless the interest be paid. If the defendant be not satisfied with that order, then the money paid must be returned, the satisfaction-piece canceled, and the defendant parties remitted respectively to their rights as they existed prior to the payment. Ordered accordingly.