Bernstein v. Levy — 68 N.Y.S. 833

Majority

p. 833

BERNSTEIN v. LEVY et al.

(Supreme Court, Appellate Term.

February 25, 1901.)

Headnote

Tender—Suppiciency—Interest and Costs. .

A tender which did not include interest and costs to the time It was made was ineffectual.

Appeal from municipal court, borough of Manhattan, Fifth district. Action by Louis Bernstein against John Levy and another. From a judgment in favor of plaintiff, defendants appeal.

Modified.

Argued before ANDREWS, P. J., and O’GORMAN and BLANCHARD, JJ.

Louis J. Jacoves, for appellants.

Jacob Rieger, for respondent.

The assertion oí defendants’ counsel in his brief that tender was made before suit is without a word in the record to support it. A defense of tender after action commenced must include interest and costs to the time of tender. The amount paid into court in this case did not embrace interest and costs to the time of tender, and the defense was therefore ineffectual, and, on the rendition of judgment for plaintiff, the justice should have allowed him a full bill of costs.

Judgment will be modified accordingly, and as modified affirmed, with costs of this appeal and disbursements to the appellants. All concur.