Majority
p. 538W. D. Wilson Printing Ink Co., Limited, App’lt, v. Austin E. Ford et al., Resp’ts. (New York City Court, General Term, Filed December 8, 1893.)
Headnote
Tender—Interest.In order to keep a tender good, the deposit in court must include inter est on the amount admitted to he due up to the day of deposit.
Philip Carpenter, for pl’ff and app’lt; W. Lane O'Neill, for def’t-resp’t.
This is an appeal from a judgment in favor of the defendant and against the plaintiff, after a trial before the court without a jury.
This action was brought on a promissory note given by the defendants. The answer is a tender. The tender was made on the 10th day of July, 1890, and the amount tendered at that time Was one hundred and fifty-three and 50-100 dollars ($153.50), which was paid into court on August 19, 1890. The deposit in
p. 539
court should have at least been accompanied by the interest up to the time the deposit was made, for the defendant had the unrestrained use of the money up to that time. Murphy v. Gold Stock Co., 3 N. Y. Supp., 804 -806; 24 St. Rep., 123 ; City Court, 1889.
In the case at bar, interest to date of deposit did not accompany the deposit, therefore, the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
Ehrlich, Oh. J., concurs.