Parisi Brothers, Inc. v. Nardone , 117 N.Y.S.2d 766 ( 1952 )

Action for goods sold and delivered of the agreed price and reasonable value of $441.98. Defendants pleaded a general denial, but admitted that they owed plaintiff $46.48 for merchandise received. The answer also alleged that before suit defendants tendered payment to plaintiff of $46.48, which plaintiff refused. On the trial defendants conceded that only one item of $390 was in dispute. It is conceded that after suit defendants paid into court, pursuant to court order, $51.98, plus interest and costs to date, which was not accepted by plaintiff. The action was tried by the court, without a jury, and resulted in a decision for defendants dismissing the complaint. Judgment reversed on the law and the facts, without costs, and judgment directed for plaintiff and against defendants for $51.98, plus interest and costs to the date of payment into court. The findings of fact are affirmed, and a new finding is made that defendants in their answer admitted owing plaintiff $46.48 for merchandise received, and on the trial conceded that only one item of $390 was in dispute. In view of the admission in the answer and the concession on the trial, it was error to have dismissed the complaint. As defendants paid into court the amount of their admitted indebtedness, plus interest and costs to date, which was not accepted by plaintiff, and plaintiff has ultimately recovered judgment, section 173 of the Civil Practice Act, in effect at the time of trial, is applicable. Johnston, Acting P. J., Adel, Wenzel, MaeCrate and Schmidt, JJ., concur. [See post, p. 846.]