Gottlieb v. Bernhard , 117 N.Y.S. 882 ( 1909 )

MacLEAN, J.

The plaintiffs in their complaint claimed the sum of $247.98, with interest, for labor and services rendered at the special instance and request of the defendants. The defendants interposed a separate defense of $63.27, because of damage through unskillful work, overcharge, and discounts, alleging “that defendants now tender' into court the aforesaid sum of one hundred and eighty-four and 71/100 ($184.71) dollars, which sum the defendants are now ready, able, and willing to pay to the plaintiffs,” having, as also alleged, tendered the sum to the plaintiffs prior to the commencement of this action. The plaintiffs were at least entitled to judgment for the sum so conceded by the pleadings and upon the trial to be due to the plaintiffs; but, as there appears from the record no proof of payment into court, rendition of judgment by the trial justice in favor of the defendants for $30 costs was erroneous, because, unless there was payment into court, the plaintiffs would be compelled to resort to another action to recover the amount admitted by the pleadings to be due.

The judgment should be reversed, and the cause remanded. All concur.