Rosenbaum v. Greenbaum — 65 N.Y.S. 212

Majority

p. 212

ROSENBAUM v. GREENBAUM.

(Supreme Court, Appellate Term.

June 13, 1900.)

Headnote

Tender—Payment into Court.

Where, in an action of debt, defendant admits an indebtedness in an amount less than that claimed in the complaint, and alleges a tender thereof, it is error for the court, on finding in favor of defendant on his contention as to amount due, to dismiss the action, where defendant failed to make his tender good by depositing the amount with the clerk of the court, since judgment should have been rendered in plaintiff’s favor for the amount conceded to be due him.

Appeal from municipal court, borough of Manhattan.

"Action by Golda Rosenbaum against Jacob Greenbaum. From a judgment dismissing the complaint, plaintiff appeals.

Reversed.

Argued before BEEKMAN, P. J., and GIEG ERICH and O’GORMAN, JJ.

p. 213

Emil A. Klein (Abraham B. Scheimer, of counsel), for appellant.

Sami. S. Koenig, for respondent.

The defendant conceded an indebtedness to the plaintiff for the rent of the premises in question in a sum less than the amount claimed, and alleged a tender of such sum to the plaintiff. It appears, however, that the tender was not made good by deposit of the money with the clerk of the court. The justice therefore erred in dismissing the complaint. He should, at least, have awarded judgment in favor of the plaintiff for the conceded amount. The judgment must therefore be reversed.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.