Retan v. Drew — 19 Wend. 304

Majority

p. 304

Retan vs. Drew.

NBW-YORK,

May, 1838.

Headnote

A tender of money in satisfaction of a debt, made after the filing of a declaration and entry of a rule to plead is no defence, unless the costs then accrued are offered to be paid, although at the time of the tendera copy of the declaration has not been served.

Demurrer to replication. The declaration was in assumpsit. The defendant pleaded non-assumpsit as to the several sums mentioned in the declaration, except as to the sum of $52,50, and as to that sum a tender made before the commencement of the suit, to wit, on the fourth day of November, 1835. The plaintiff replied that before the tender, to wit, on the third day of November, he filed a declaration in the clerk’s office of this court at Geneva, and entered a rule to plead, and on the fifth day of November caused a copy of the declaration and a notice of the rule to plead to be served on the defendant; and that the defendant did not before the filing of the declaration and entry of the rule to plead tender the said sum of $52,50, concluding with a verification and prayer of judgment. To which replication the defendant demurred.

/. A. Spencer, for defendant.

S'. Stevens, for plaintiff.

By the Court,

Although the action was not, for every purpose, commenced until a copy of the declaration was served on the defendant, 2 R. S. 347, § 1, 15 Wendell, 554, yet the plaintiff had before the tender employed an attorney to bring the suit, a declaration had been prepared and filed and a rule entered to plead ; and the plaintiff was proceeding with all diligence to serve the defendant with a copy of the declaration and notice of the rule. The plaintiff had incurred costs which the defendant was liable to pay, and the tender was not sufficient without an offer to pay the costs also. A different rule would work great in

p. 305

justice. See 3 Johns. Cas. 145 ; 2 Johns. R. 342; 17 Wendell, 91.

The pleader, so far as the nature of the case would permit, has followed the approval precedent of a replication where the tender was made after the suing out of process for the commencement of an action, 2 Chitty's P1. 646.

Judgment for plaintiff.