Opinion
January, 1901.
Benjamin Patterson (William J. O'Sullivan, of counsel), for appellant.
Abraham A. Joseph, for respondent.
This action was for goods sold and delivered, valued at $214.50. The answer admitted the sale and delivery of goods to the amount of $176.50. The answer further alleged "That the defendant is ready and willing to pay plaintiff said sum, but that he refused to accept the same and now defendant brings said sum of $176.50 into court ready to be paid to plaintiff if he will accept the same." The answer was served May 24, 1900; trial had June 22, 1900. It appears that said sum of $176.50 was not paid into court until at the end of the trial, when it was then offered to the trial justice. The jury rendered a verdict for plaintiff for said sum of $176.50, for which amount judgment was entered in plaintiff's favor, together with $103.26 costs as taxed, making in all the sum of $279.76. The defendant appeals from this judgment, and now contends that it should be modified by striking therefrom the sum of $103.26 costs taxed therein in plaintiff's favor, and that a provision should be added thereto, awarding costs to defendant, to be taxed upon the theory that, having tendered the sum of $176.50 before action, and further again making such tender in his answer, and the fact that the jury only awarded judgment for that sum, he is entitled to the usual taxation costs, and not the plaintiff. Conceding that defendant's tender made before trial was a sufficient one to be available in this instance to plaintiff, it should not only have been pleaded, but he should have, before or with his plea, paid said sum into court, so that it might be subject to plaintiff's order, and thus stop interest and prevent costs. His failure to do so, until during the trial, rendered his plea of tender useless to him and, therefore, the judgment entered in plaintiff's favor was correct. 61 N.Y. 713; 110 id. 106; 118 id. 178.
Judgment affirmed, with costs and disbursements to respondent.
HASCALL, J., concurs.
Judgment affirmed, with costs to respondent.