Goldstein v. Stern — 29 N.Y. St. Rep. 661

Majority

p. 661

Jacob Goldstein, Resp’t, v. Meyer Stern, Applt.

(City Court of New York, General Term,

Filed February 26, 1890.)

Headnote

Tender—Judgment.

Where a tender before suit is kept good by deposit in court, the judgment should follow the verdict and the deposit be credited after the judgment is entered. Where plaintiff credited such deposit on entering his judgment, an order allowing him to correct such mistake is properly allowed.

Appeal from order allowing plaintiff to amend judgment, and from an order denying a motion to vacate said judgment.

S. F. Hyman, for app’lt; M. B. Qoodhart, for resp’t.

The rule in regard to the effect of a tender before suit brought (insufficient in amount) kept good by deposit in court, is to direct judgment for the whole amount of the claim, so as to- preserve the plaintiff’s right to costs, and to credit the deposit on account of the judgment after it is entered. Dakin v. Dunning, 7 Hill, 30 ; Murphy v. Gold & Stock Tel. Co., 24 N. Y. State Rep., 123; 3 N. Y. Supplt., 804. The plaintiff credited the amount paid into court on entering his judgment. This was error. The judgment should have followed the verdict. The court below allowed the plaintiff to correct the mistake and conform the judgment to prescribed practice. The order so made was a proper exercise of judicial power, and the motion to vacate the judgment so corrected was right and must be affirmed. The appellant cites §§ 731 to 734 of the Code to sustain his position, but those sections refer to tender “ after suit brought," and such a tender must include “ costs of the action ” to the date of the tender. The tender relied on here was one “before suit brought,” and the payment into court was to keep it good. It was “ without costs,” and the rule applicable is that laid down in Dakin v. Dunning, and kindred cases, before referred to.

Order affirmed, with costs.

McAdam, Oh. J., and Ehrlich, J., concur.