Majority
p. 334EICKHOFF v. GILLIES et al. (Supreme Court, Appellate Term. February 24, 1910.) Argued before ‘SEABURY, GUY, and WHITNEY, JJ.
Headnote
Costs (§ 42[1] )—Insufficient Tender.In an action to oust a tenant, plaintiff is entitled to costs, though defendant was at all times willing to pay the rent due, but refused the demand of attorney over the telephone, because the attorney would only give his personal receipt for the money, and did not tell defendant that he had written authority, since to make a valid tender the money must be actually produced.
[Ed. Note.—For other cases, see Costs, Dec. Dig. § 42.[1] ]
Appeal from Municipal Court, Borough, of Manhattan, Fifth District.
Action by Charles E. Eickhoff against William F. Gillies and others. From a judgment for plaintiff, defendants appeal.
Affirmed.
Leo Fassler, for appellants.
William B. Dressier, for respondent.
Plaintiff left the city, giving his attorney written authority to collect certain rent due, and which defendant was ready and anxious to pay. The attorney demanded the rent over the telephone, refusing any receipt but his own personal receipt, and not stating that he had written authority to collect. Defendant not being willing to take the risk of paying the attorney under these circumstances, the latter had the summons in this action served forthwith. Defendant seems to have acted réasonably, but to make a legal tender the money must be actually produced. Plaintiff is therefore entitled to the costs, for which he seems to have been seeking.
The judgment must be affirmed, with costs.