Opinion
June 7, 1907.
M.H. Newman, for the appellant.
Aaron A. Feinberg, for the respondent.
The parties do not agree whether the second installment was in fact tendered before the suit was begun, and the record is not clear upon this point. Yet I think that we must regard the purpose of the payment of the sum of the two installments into court was to make good the plea of tender before the suit was brought, within the rule of Platner v. Lehman (26 Hun, 374), and of Wilson v. Doran ( 110 N.Y. 101). (See, too, Nichols N Y Pr. 2008, and cases cited.)
If the defense of tender of amount due before action brought was established, the plaintiff could not take his decree of foreclosure, but only a money judgment against the defendants, less the defendants' costs. ( McCoy v. O'Donnell, 2 T. C. 671; affd., 59 N.Y. 656.) The money paid into court belongs to the plaintiff in any event; his claim as to that amount is deemed stricken from the complaint, and hence if the plaintiff's cause of action is based wholly upon the non-payment of that sum, and limited thereto, he must fail. ( Wilson v. Doran, supra, 107.)
I think that the plaintiff was entitled to the order, and that the order of the County Court of Kings county must be reversed, with ten dollars costs and disbursements.
HIRSCHBERG, P.J., WOODWARD, HOOKER and MILLER, JJ., concurred.
Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and motion granted, with costs.