Mazanec v. Manhattan Investment & Construction Co.

Van Brunt, P. J.:

.This action was brought to recover moneys paid on a contract, and damages to the amount of. $1,000 for false representations in

respect thereto. The defendant answered admitting the execution of a contract, denying the representations and that the plaintiffs relied upon them, and alleging an offer to rescind the contract, which was declined. The answer further stated that the. defendant was willing to restore to the plaintiffs the amount paid, to wit, the sum of $145, upon the cancellation of the contract, and thereby offered to repay the same upon delivery up for cancellation of said last-mentioned contract. Upon the issues thus formed the case came on for trial, and the plaintiffs tendered the contract for cancellation, and the court directed" judgment for $145 and interest and $15 costs; to which ruling the defendant duly e.xcepted. From the judgment thereupon entered this appeal is taken.

We do not see what authority .there existed for the. action of' the court which resulted in this judgment. If the matter contained in the answer is to be considered as an offer, such offer not being accepted within the time limited by the Code, it could not be used upon the trial. It cannot be considered as an admission, because it is not couched in the terms of an admission and is inconsistent with the positive denials contained in the answer. The most that could be claimed for this allegation in the answer is that it was an offer of compromise — that the defendant, without further litigation,, was willing to settle the case upon the terms mentioned in the answer. By such an offer the defendant was not bound until the case was called for trial. There seems to be no theory upon which a tender of payment of this description can be made the basis of a judgment, . It is not an admission of anything, due or of any liability which could form the subject of a judgment.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

"Williams, Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.