25 How. Pr. 464 | The Superior Court of New York City | 1863
The answer alleges a tender before suit brought, and avers a continuing and present willingness and readiness to pay the sum tendered. The sum alleged to have been tendered has not been paid into court, and the plaintiff returned the answer as a nullity, and assigned as reasons, that the answer was not accompanied with notice of payment of the money into court, and that it had not in fact been paid.
The course pursued by the plaintiff is in accordance with the practice in force when the Code took effect. (1 Gr. Pr., 249 and 541; Sheriden agt. Smith, 2 Hill, 538 ; Brown agt. Ferguson, 2 Denio, 196 ; Brooklyn Bank agt. De Graw, 23 Wend., 345 ; 8 Barb., 408; 2 E. D. Smith, 197; 3 Chitty’s Plead., 955, 1018; 21 N Y., 354, and id., 366.)
My attention has not been called to any provision of the Code which I deem to be inconsistent with this practice. It continues in force if not inconsistent with thez Code. (Code, § 468.)
The motion must be denied, with $7 costs, but defendant may amend his answer in ten days, on payment of such costs, and stipulating to take notice of trial for the next term of the court.