149 N.Y.S. 662 | N.Y. App. Div. | 1914
To a complaint for money paid out for defendant’s use, a cause of action was counterclaimed for the return of certain diamonds alleged to have been deposited and held by plaintiff as collateral security. The answer alleged that the amount of plaintiff’s claim, with interest and costs, had been tendered to one of plaintiff’s attorneys, with a demand for a return of the collateral, which the attorney had declined. Upon a motion for judgment on the pleadings, the answer was held good, for such a tender was considered effective to discharge the lien, although made to an attorney and not to the plaintiff. (174 N. Y. St. Repr. 869.) Upon the trial, however, it appeared that after the action had been brought and some question of an adjustment raised, one of plaintiff’s attorneys wrote to defendant’s attorney that the plaintiff was ready to surrender the diamonds to defendant personally. “He desires to have her personally present when the diamonds are delivered. There is good reason for this in order that there may be no dispute hereafter touching their delivery.” The letter then stated the amount claimed, with interest and the costs. The
Considering .that these diamonds were described in very general terms in a receipt taken some eight years before, and the possibilities of questions as to the identity of the stones or of their settings, such a precaution that defendant should receive them herself was not unreasonable. Nevertheless, the following week, a tender of the amount was proffered to the attorney, which he declined as he had not in his possession the diamonds, the delivery of which was made a condition of the tender. While an attorney has a general authority to receive tender or payment of a claim in suit, it is evident that special circumstances may exist which limit this agency. The present being such a case, it follows that in view of the terms of the prior letter, the so-called tender, without the defendant being present, was ineffective.
The judgment, therefore, must be varied so far as to make defendant’s recovery of possession of the diamonds dependent upon her payment of the amount theretofore adjudged to plaintiff for his debt, interest and costs; and as thus modified the judgment is affirmed, without costs of these appeals to either party.
Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.
Judgment varied so far as to make defendant’s recovery of possession of the diamonds dependent upon her payment of the amount theretofore adjudged to plaintiff for his debt, interest and costs; and as thus modified, judgment affirmed, without costs of these appeals to either party.
