Brown v. Ferguson

2 Denio 196

Opinion

By the Court, Bronson, Ch. J.

The statute only authorizes a tender after a suit has been commenced. (2 R. S. 553, § 20—23.) Whether in such a cáse the money should be1 brought into court, we need not now inquire. (See Slack v Brown, 13 Wend. 390; Graham v. Gedney, Grah. Pr. 544, note, 2d ed. This was a tender before suit brought; and it was not available to the defendant, for thereason that the money was not brought into court. It is true that the plaintiff had incurred costs prior to the tender which the defendant was bound to pay. (Retan v. Drew, 19 Wend. 304.) But the suit was not commenced until the declaration was filed and served. (Johnson v. Comstock, 6 Hill, 10.) On a common law tender the money must be brought into court. This disposes of the principal part of the motion. But there should be a retaxation of the plaintiffs bill of costs.

Ordered accordingly.