188 A.D. 221 | N.Y. App. Div. | 1919
This action is one in replevin, brought by the alleged owner of certain merchandise stored with defendant as a warehouse keeper by Furness, Withy & Co., Limited, for the account of whom it may concern. The value of the property is alleged
The complaint alleges that the sum of $16,000 demanded by the defendant is wholly excessive and not a proper charge. Judgment is asked for the possession of the chattels and that plaintiff be adjudged to be the owner and entitled to possession thereof. The answer of the defendant sets up that the goods were stored with it by Furness, Withy & Co., Limited, for account of whom it may concern, and so remained until December 2, 1918, when they were delivered to the plaintiff under the writ of replevin in this action, and that the charges of the defendant herein amounted to the sum of $16,218.37. Defendant asked judgment that it be declared to have a special property in the merchandise described to the extent of such charge, with interest. This motion has been made for an order directing the city chamberlain to pay the said sum of $6,500. to the defendant, and that thereupon this action proceed to a trial, and that the sum so paid be deducted from any recovery, and judgment given for the residue pursuant to section 734 of the Code of Civil Procedure. From the denial of this motion the present appeal is taken.
Concededly section 731 of the Code of Civil Procedure and the immediately following sections do not apply to this application, for this is not an action to recover a sum of money only, nor for a casual or involuntary personal injury, nor for a like injury to property. Furthermore, these sections apply only where the tender is made after action brought. But the application herein is based upon the proposition that this was a common-law tender, having been made before action brought,
The question involved in this case is not the title to the goods. The defendant has never claimed that it owned the merchandise in question but simply that it has a lien thereon to the extent of its warehousing charges. It came lawfully into the possession of this property. Plaintiff does not dispute that nor does he dispute that the defendant is entitled to its reasonable charges as a warehouseman. He, however, contests the right of the defendant to the full amount which it demands; but he himself fixes the amount which is justly due to the defendant, in any event, as the sum of $6,500. He has, therefore, first tendered this sum to the defendant, and then obtained an order of the court for its payment into court, and, having so done, the effect was to create an absolute transfer of the money to the defendant. The purpose of such a tender, followed by payment, is to stop interest and prevent costs, and having sought to accomplish this purpose by the deposit of the money, the common-law tender became effectual and complete. The money passed to, and became the property of, the defendant, and it is absolutely entitled to receive the same. (Mann v. Sprout, 185 N. Y. 109; Cass v. Higenbotam, 100 id. 248; Rush v. Wagner, 184 App. Div. 502.)
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted.
Clarke, P. J., Smith, Page and Shearn, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.