Eaton v. . Wells

Folger, Ch. J. This was a suit to foreclose a mortgage. There were pleadings by an amended complaint and an amended answer. There would have been an issue of fact, whether there was any thing due and payable on the mortgage by its terms, at the commencement of the suit, had it not been for an allegation in the answer of a tender of a sum certain, at a day and place certain, in payment of the mortgaged debt. The defendant, having averred a tender, was bound by that statement in his pleading, and the plaintiff and the court could accept the averment as an admission establishing the fact that a tender was made. How, a tender admits the cause of action stated in the complaint to the amount tendered. (Johnston v. Columbian Ins. Co., 7 Johns. 315 ; Spalding v. Vandercook, 2 Wend. 431; Roosevelt v. N. Y. & H. R. R., 45 Barb. 554, and cases there cited.) The amount here tendered was $2,568, and it *579 ' was tendered on the 19th day of September, 1879. The amount claimed in the complaint to be due and payable was $2,500 and interest from the 1st day of May, 1879, at the rate of seven per cent. On the day that the tender was made, the amount thus due and payable was some cents less than the amount tendered. So that by the pleadings, if the plaintiffs counsel and the court chose to take the averments of the answer as true, there was no issue of fact left to be tried. The single question left was this : Was the tender sufficient ? It appeared that the suit was begun before the tender was made. The plaintiff was, therefore, entitled to some costs of the suit. But no tender was made for these, nor was there an order for a tender of the debt without a tender of the costs. Therefore, the defendant failed to satisfy the suit by the tender that he made. The plaintiff was entitled to judgment against him. It is said that the court needed proof of the amount of the debt, before it could be known that the sum tendered was not enough to cover the costs of the suit, as well as the money due on the mortgage. But the allegation of the tender is, that it was made in payment of the mortgage debt, evidenced and secured by the bond and mortgage. Hence, it needed only a computation based upon the bond and mortgage as set forth in the complaint, to ascertain whether the tender was exactly or nearly of the amount of the debt, so as to be an admission thereof as averred in the complaint. To avoid the force of this language of the answer, it is claimed that costs, when the right to them attaches, are a part of the mortgage debt. That is not correct. The mortgage is a lien upon the land for the debt; and when suit has been properly brought to enforce it, it is also a lien thereon for the costs ; but it is for the costs as an incident to the debt, not as a part of the debt. There was, then, no need of proof of the amount of the debt, aside from the averments of the pleadings. There was, then, no trial of an issue of fact. Ho findings of fact were needed, for there were no facts to be found. The pleadings contained them. It was a judgment rendered on the pleadings. It was like a demurrer ore tenus / though not one *580 in technical form, it was one in effect. There are no findings of fact on the hearing of a demurrer. None are to be found. The pleadings contain them; and conceding them to be as the pleadings state them, the conclusion of law is this or that. But it is said that there was no decision in writing filed with the clerk, in pursuance of section 1010 of the New Code. We think that the order for judgment in this case is a sufficient decision, in wilting, to meet the demand of that section in the case now presented. But if we concede that it is not, then the practice of the defendant was not correct'. He moved for and got an order at Special Term to set aside the judgment. The section last cited does not warrant that. If no decision in writing is filed, the party may move at Special Term for a new trial on that ground, and the court may order a new trial absolutely or nisi. The order of the Special Term was erroneous, and that of the General Term reversing it should be affirmed. All concur. Order affirmed.