Margulies v. Goldstein

GREENBAUM, J. This action was brought to recover the sum of one hundred and eighteen and 80Aoo dollars ($118.80) for work, labor, and services rendered. By their amended answer the defendants pleaded, as a defense to the plaintiff’s demand, facts tending to show that there was but [1025] $73.60 due the plaintiff, which sum it is alleged the defendants tendered to the plaintiff before suit, and “which sum these defendants hereby pay into court as the amount of their tender.” Upon the trial it appeared that the amount of the alleged tender was not paid into court by the defendants until the day following the service of the amended answer, and seven days after the service of the original answer, which contained the same allegation with reference to tender. “The rule is well settled that a tender before suit brought, to be available, must not only be pleaded, but the defendant, before or with his plea, must pay the money into court, so that it may be subject to the plaintiff’s• order.” Becker v. Boon, 61 N. Y. 322; Wilson v. Doran, 110 N. Y. 101, 17 N. E. 688; Taylor v. The Brooklyn Elevated R. R. Co., 119 N. Y. 561, 23 N. E. 1106. It is apparent, therefore, that the tender before suit was not available to the defendants in this case, and the trial court should have so held as a matter of law. Though the entire charge to the jury is not contained in the record before this court, sufficient appears to show that the question of the sufficiency of the tender was left to the jury. This was manifest error. Plaintiff having sued for $118.80, and it not appearing what was submitted to the jury besides the question of sufficiency of the tender, the judgment for the defendant should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.