Railway Advertising Co. v. Posner — 65 N.Y.S. 226

Majority

p. 226

RAILWAY ADVERTISING CO. v. POSNER et al.

(Supreme Court, Appellate Term.

June 13, 1900.)

Headnote

Tender—Pleading—Payment into Court.

Defendant, to avail himself of the defense of a tender of an amount due before suit, must plead the tender, and keep it good by payment into court.

Appeal from municipal court, borough of Manhattan, Sixth district.

Action by Railway Advertising Company against Charles H. Posner and another. From a judgment for defendants, plaintiff appeals.

Reversed.

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

Richard T. Greene, for appellant.

Cornelius F. Collins, for respondents.

In this case the justice found that the defendant was indebted to the plaintiff in the sum of $377, but gave judgment for the defendant, with costs. This conclusion was evidently reached upon the theory that there had been a sufficient tender of the amount due before suit; but the defendant, to avail himself of this defense, should have pleaded the tender, and kept the tender good by paying the same into court. Becker v. Boon, 61 N. Y. 317 . He did neither,

p. 227

and the judgment was therefore improper. Without considering the other errors assigned, the judgment should be reversed.

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

Cases cited

Becker v. Boon 61 N. Y. 317 N.Y. Comm'n App. p. 226