Majority
p. 686WIENER v. AUERBACH. (Supreme Court, Appellate Term. April 24, 1906.) Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ.
Headnote
Tender — Pleading—Failure to Prove — Effect.Where, in an action for wages, defendant admitted a certain amount to be due, and handed this sum to the justice, but tender, while pleaded, was not proven, plaintiff was entitled to judgment for the amount admitted to be due.
[Ed. Note. — For cases in point, see vol. 45, Cent. Dig. Tender, § 91.]
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by Katie Wiener .against Herman Auerbach. From a judgment for defendant, plaintiff appeals.
Reversed.
J. S. Freedman, for appellant.
H. Auerbach, for respondent.
The plaintiff testified that the sum of $8.50 was due her as w,ages, while the defendant’s testimony showed the amount to be $7.01, which sum he handed to the justice, who thereupon ren-. dered judgment in his favor. Tender was pleaded, but the fact of a tender was not suggested by the proof, and upon the conceded facts the plaintiff was entitled to judgment for the amount admitted by the defendant to be due her.
The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.