Murray v. Bryan

The provisions of Code of Civil Procedure, section 731, for costs to be added to the amount tendered, do not apply to a tender before suit, such as was set up in the answer here. Under plaintiffs’ admission of then- refusal to take the $108 offered, defendant did not have to produce actually the money and bring out a more emphatic refusal. {Bellinger v. Kitts, 6 Barb. 273.) The order of the County Court of Westchester county is, therefore, reversed, with ten dollars costs and disbursements, with a direction that plaintiffs’ recovery of the amount of defendant’s tender, with any interest accrued since payment thereof into court, be offset against defendant’s costs to be taxed. {Dingee v. Shears, 29 Hun, 210.) Mills, Rich, Putnam, Blaekmar and Kelly, JJ., concur.