Keeler v. Van Wie

49 How. Pr. 97 | N.Y. Sup. Ct. | 1875

Westbrook, J.

If the plaintiff had adhered to the resolution of not accepting the money, I do not see how a recovery cduld have been prevented. After suit commenced -the plaintiff was- entitled to his costs and a payment to his clerk, without a disclosure of the existence of -a suit, would not be a valid one. Such payment, however, having been made to the clerk' of the plaintiff the latter had the option to accept . it or not. If he did accept it and take the money from the person to whom it was paid and appropriate it to his own use, he thereby ratified the manner of the payment. This the plaintiff in this cause has done, and I do not see how he can obtain judgment for a demand, the money due on which he has in his pocket. The costs follow the debt. If the latter has been extinguished no costs can be recovered.

This. is not like the case of Bogardus agt. Richtmeyer (3 Abbott, 119). In that a judgment had been regularly taken, the defendant failing to present his defense to the court upon the trial, and on motion to be relieved the court had a right to impose terms. _ But in this case the defendant makes- defense and alleges a payment, and no discretion exists in the imposition of terms as in a case where a party asks a favor of the court. We have but a simple legal question to answer and that is: Has this borrowed money been paid ? As the plaintiff has confessedly received the money and used it, I do not see how he can recover a judgment therefor. He was not bound to receive it from his clerk, but having done so he adopts and accepts the payment.

This identical question was held by me, during a preceding circuit, in Hale agt. Meech. It was decided in that case that money left with another for the plaintiff the latter was not bound to accept; but having taken the money and used it, it operated as a payment.

Toll agt. Hiller (11 Paige, 228) decides a similar principle. In that case a partial payment of the amount due on a mortgage had been refused by the solicitor to be received as such, but was retained as a deposit. The complainant took the money from the solicitor with an understanding that he was to allow no interest until the balance was paid. The chancellor held, “ that the defendant was equitably entitled to have the money applied as a payment on his mortgage as of the time it was received and used by the complainant.”

So, in this case, the defendant has a .right to insist that this money received by the plaintiff should be deemed a payment from the day it was so received and used by him.

As before stated, the cause of action being extinguished no costs can be allowed to the plaintiff. His cause of action fails and there must be a judgment in favor of the defendant, with costs.

The defendant’s attorneys will prepare findings and submit them to the other side with notice of settlement.