Opinion
February, 1899.
Hermon H. Shook, for appellant.
George Norris, for respondent.
The pleadings were oral and the only issue raised arose on a plea of tender. No evidence concerning it was given, and, assuming there was some tender, it does not appear whether it was made before or after suit brought. This question should have been properly determined upon competent evidence and a proper judgment rendered. If, then, the proof had shown that the tender was made before suit and that it was sufficient, the judgment should have been rendered in defendant's favor. But if the tender was made after suit brought, the plaintiff should have had judgment for the amount due her. This question was determined in Ellenstein v. Klee, 12 Misc. 112, and under the decision of that case the dismissal of plaintiff's complaint in this case at bar was erroneous.
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
MacLEAN and LEVENTRITT, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.