McNeil v. Sun & Evening Sun Building, Mutual Loan & Accumulating Fund Ass'n

78 N.Y.S. 90 | N.Y. App. Div. | 1902

Jenks, J.:

The evidence sustains the decision at Special Term that the sum tendered was not sufficient to discharge the mortgage.debt. There can be no question whether the taxes paid by the defendant were chargeable in the amount due, as the mortgage specifically authorizes such payment and such charge. The evidence is undisputed that the taxes were paid prior to the tender of August 2, 1900. It appears that the secretary of the defendant furnished a statement to plaintiff upon' request, and that' therefrom the plaintiff figured the amount of his tender. The statement is dated May 19, 1900. The plaintiff testifies that he received it about March 1, 1900, but that he did not make tender until August 2, 1900. This statement does not purport to show the amount due upon the mortgage, but in form appears to sustain the testimony of the secretary that it was a statement of dues, arrears and deductions representing the account of the plaintiff as a stockholder in the defendant corporation. Instead of depending on a calculation upon such a statement for the amount to be tendered upon the mortgage several months later, I see no reason why the plaintiff, by simple inquiry, could not definitely have ascertained the exact amount thereof.

Further, as in this case the mortgagor sues in equity for affirmative relief, the plaintiff was bound to keep his tender good. (Tuthill v. Morris, 81 N. Y. 94; Werner v. Tueh, 127 id. 217; Nelson v. Loder, 132 id. 288.) There is no pretense that he did so. On the contrary, he testifies that after he made tender he returned the money to his brother, from whom he had obtained it. He did not even have the amount tendered with him in court. The learned counsel for the plaintiff insists that the defendant is precluded from taking the objection that the tender was not kept good for the reason that he did not plead this omission. The plaintiff complained that he had “ duly tendered to said defendant corporation the said sum * * * in full satisfaction and accord of indebtedness,” and the defendant denied that the plaintiff duly tendered, etc. I think that the plea of due tender may be held to imply the allegation that the plaintiff has done in the premises all that the law requires to constitute a tender in such a ease. ■ I think that the case was correctly disposed of by the learned Special Term (Mr. Justice Dickey presiding) and, therefore, the judgment must be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.