Craig v. Robinson — 67 N.Y.S. 969

Majority

p. 969

CRAIG v. ROBINSON.

(Supreme Court, Appellate Term.

January 2, 1901.)

Headnote

Tender—Sufficiency.

Where defendant’s answer admitted an indebtedness to plaintiff, and alleged a tender of the amount, but the tender was not kept good, it was not available as a defense.

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

Action by Alida B. Craig against Mary Bobinson. From a judgment in favor of defendant, plaintiff appeals.

Beversed.

Argued before TBUAX, P. J., and SCOTT and DUGBO, JJ.

McElhenny & Bennett, for appellant.

J. E. Smith, for respondent.

It is not disputed that the defendant owes the plaintiff $17.85. Indeed, the answer admits an indebtedness to this extent, and alleges a tender of the amount. The plea of tender is not, however, available to defendant as a defense, because it does not appear that the tender was kept good. The plantiff was clearly entitled, therefore, to recover at least the amount named, with interest. As there must be a new trial, it is not necessary to pass upon any other question in the case, further than to remark that the evidence would, in our opinion, have justified an even larger recovery.

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