126 N.Y.S. 145 | N.Y. App. Term. | 1910
Hear the close of the trial, in open court and in the presence of the jury, the defendant’s attorney stated: “I wish to offer in tender to plaintiff $26.68 rent for four days and $1.50, approximately, for interest and $3 for the disbursements in this action, amounting to $31.18. I make that tender into court.” The plaintiff’s counsel then said: “ It is too late entirely for a tender. It is a question for the'jury to say.” Defendant’s counsel: “I pay it into court to make our tender good.” Plaintiff’s counsel: “ I ask the jury to be directed not to pay any attention to this sort of thing.” The court: “ This is simply a legal question with which the jury have nothing to do.” During the charge the defendant’s counsel said: “ I ask your Honor to charge the jury that, if the jury find that the landlord is only entitled to $26.68 and the interest thereon, then their verdict must be for the defendant, because the money has been paid into court.” The court: “That is so.” To this plaintiff’s counsel excepted. The only question which need be considered on this appeal is the effect of this so-called tender and the charge of the learned trial justice relative thereto. The only statutory provision regarding .an offer of judgment or payment of money into court, for the purpose of satisfying a plaintiff’s claim and avoiding the payment of costs, is contained in section 148 of the Municipal Court Act. That section provides that: “ The defendant may, upon the return of the summons, and before answering, file with the court a written offer to allow judgment to be taken against him for a sum of money * * *. If the plaintiff thereupon * * * files with the court a written acceptance of the offer, the court-must render judgment accordingly. If an acceptance is not filed, the offer cannot be given in evidence upon the trial * * *. Dirt a defendant may instead of such written offer, deposit the amount of his offer, if a
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Gut and Gavegan, JJ., concur.
Judgment reversed.