Simpson v. French , 25 How. Pr. 464 ( 1863 )

Bosworth, Ch. Justice.

The answer alleges a tender before suit brought, and avers a continuing and present willingness and readiness to pay the sum tendered. The sum alleged to have been tendered has not been paid into court, and the plaintiff returned the answer as a nullity, and assigned as reasons, that the answer was not accompanied with notice of payment of the money into court, and that it had not in fact been paid.

The course pursued by the plaintiff is in accordance with the practice in force when the Code took effect. (1 Gr. Pr., 249 and 541; Sheriden agt. Smith, 2 Hill, 538 ; Brown agt. Ferguson, 2 Denio, 196 ; Brooklyn Bank agt. De Graw, 23 Wend., 345 ; 8 Barb., 408; 2 E. D. Smith, 197; 3 Chitty’s Plead., 955, 1018; 21 N Y., 354, and id., 366.)

My attention has not been called to any provision of the Code which I deem to be inconsistent with this practice. It continues in force if not inconsistent with thez Code. (Code, § 468.)

A tender of the amount due may be a bar to collateral remedies for enforcing payment of the debt, though in suits to enforce such remedies the plea of tender be not accompanied with payment of money into court and notice thereof. (Hunter agt. Le Conte, 6 Cow., 728 ; and Kortright agt. Cady, 21 N. Y., 343.) Tender, where the contract is payable in chattels, is not governed by the same rules as tender in satisfaction of a money demand. (6 Cow., 728 ; 10 Wend., 374; 13 id., 95, and 16 N. Y, 582.) But tender and refusal to accept do not discharge the debt. Tender bars an action to recover the debt only when pleaded, and the amount thereof is paid into court, and notice thereof given in or with the plea. When paid into court, it belongs to the plaintiff, and will be paid to him though he fail in the action, as he must do, if the tender was properly made, and of the correct sum.

The motion must be denied, with $7 costs, but defendant may amend his answer in ten days, on payment of such costs, and stipulating to take notice of trial for the next term of the court.