Slack v. Brown

13 Wend. 390 | N.Y. Sup. Ct. | 1835

By the Court,

Nelson, J.

Whether consequential damages, arising from running down the vessel, are recoverable or not under the act of 1831, (a question as to which there is some difference of opinion in the court,) the plaintiffs in this case were not entitled to recover them under their declaration. The consequential damages were special, and did not necessarily arise from the injury complained of and consequently were not implied by law. To prevent surprise, the pleader should have stated particularly the special damages sought to be recovered. 1 Chitty's Pl. 386. They were the natural and legal consequences of the principal acts, and would be recoverable as consequential loss under the ordinary remedies. 9 Wendell, 325, and cases there cited.

Where an action at law is commenced for a casual or involuntary trespass or injury, the defendant before trial may tender amends ; and if the sum tendered is sufficient to cover the damages and costs, the plaintiff is not entitled to recover costs incurred after the tender; but, if he proceeds, must pay costs to the defendant. 2 R. S. 553, § 20, 22. If the plaintiff accepts the tender and still proceeds in the action, the sum accepted must be deducted from the whole amount recovered, and judgment is rendered only for the residue; and an entry of such tender and acceptance is made on the record. The plaintiff’s right to recover, or his liability to pay costs, is determined by the amount of such residue. § 23. By these provisions, it appears that if the plaintiff refuses to accept the tender and proceeds in the action, and does not recover a sum exceeding the tender, he must pay the costs accrued after the tender; which is but the application of the ordinary rule of paying money into court. 1 Saund. 33, c.,n. 2. 2 Archb. Pr. 203. The 23d §■ is a new provision, and very probably, in case of acceptance of the tender, puts the further litigation of the plaintiff under the peril of payment of costs subsequently accruing, unless he recovers a sum (beyond that tendered) which shall entitle him to costs under the general law of costs. In the other case a recovery of six cents beyond the amount tendered gives costs. If the plaintiff refuses to accept the tender, it is not to be stricken out of the declaration, as when money is paid under the 23d §, or into court, because his only mode ofcollectingitis by means of the judgment - and in analogy to the practice of paying money into court, of which this was designed as a cheap and expeditious substitute, the plaintiff is entitled in any event to a verdict and judgment equal to the amount tendered. When money is brought into court, the plaintiff is at all events entitled to it. 1 Saund. 33, n. 2. 2 Archb. Pr. 203. Any other construction would be unjust. The defendant has the benefit of the tender, to the amount of it, throughout the subsequent litigation, the same as if so much had been paid into court; and this in consequence of his ability to prove that he has acknowledged so much to be due, and has offered to pay it. For the like reason if the plaintiff changes his opinion and elects to accept, and stops his suit short of a trial, he should be permitted to do so, deducting the costs that the defendant has been subjected to since the tender. This is also analogous to the practice of which this is a substitute. 2 Archb. Pr. 203.

Although in form this is an action of debt upon bond, it may be considered as coming within the statute allowing tender of amends, and is substantially an action of trespass. But the defendant can make the tender only when it is casual or involuntary ; and as the right exists only by virtue of the statute, it devolves on him to bring his case within its terms. How that should be done has not been prescribed by the act, and is therefore necessarity left to the regulation of the court. It can be done in one of two ways—either by the finding of the jury, or by the certificate of the presiding judge. The latter is the most simple mode, and is in harmony with the regulation of the statutes in similar cases, 2 R. S. 653, § 8, and is therefore prescribed by the court as the mode to be adopted in these cases.

The plaintiffs offered at the trial to accept the damages tendered, which offer was .refused. Under the above exposition of the statute, the plaintiffs were entitled to them. The defendants undoubtedly might claim a reasonable time to procure the money, but an absolute refusal to pay would be an abandonment of the tender. As the extent of the refusal in this case is not perfectly clear, we are disposed to say that the defendants may still pay the amount tendered, if the plaintiffs elect to receive it. But the costs subsequent to the refusal at the trial, must be deducted from those the defendants are entitled to intermediate the tender in January, 1832, and the offer to receive them at the trial.

New trial granted.