Brown v. Ferguson — 2 Denio 196

Majority

p. 196

Brown vs. Ferguson.

Headnote

A tender by the defendant after the plaintiff’s attorney had drawn and sent off the declaration to be filed, but before the filing or service, is a tender before suit brought, and to render it available the money must be brought into court.

Covenant for rent in arrear. After an attorney had been retained to.bring the suit, and he had drawn and sent away the declaration to be filed, but before the declaration was filed or served, the defendant tendered a sum of money which turned out on the trial to be sufficient to pay the debt; and he also tendered a further sum sufficient to pay the costs which had then accrued. But he did not bring the money into court. The •defendant relied upon this proceeding as. a tender after suit brought. (2 R. S. 553, § 20.) The plaintiff claiming that more was due—refused to receive the money; but on the trial obtained a verdict for less than the principal sum which had been tendered. Several questions in .relation to the tender were made on the trial, which it is not necessary to notice. The plaintiff perfected a judgment on the verdict with the full costs of the suit.

J. W. Tompkins, for the defendant,

moved to set aside the judgment so far as related to costs subsequent to the tender and also that, costs be allowed to the 'defendant. (¡§ 21.)

A. Taber, for plaintiff.

The statute only authorizes a tender after a suit has been commenced. (2 R. S. 553, § 20—23.) Whether in such a cáse the money should be1 brought into court, we need not now inquire. (See Slack v Brown, 13 Wend. 390 ; Graham v. Gedney, Grah. Pr. 544, note, 2d ed. This was a tender before suit brought; and it was not available to the defendant, for thereason that the money was not brought into court. It is true that the plaintiff had incurred costs prior to the tender which the defendant was bound to pay. (Retan v. Drew, 19 Wend. 304 .) But the suit was not commenced until the declaration was filed and served. (Johnson v. Comstock, 6 Hill, 10 .) On a common law tender the money must be brought into court. This disposes of the principal part of the motion. But there should be a retaxation of the plaintiffs bill of costs.

Ordered accordingly.

Cases cited

Slack v. Brown 13 Wend. 390 N.Y. Sup. Ct. p. 196
Retan v. Drew 19 Wend. 304 N.Y. Sup. Ct. p. 196