Fallon v. Farber

28 Misc. 197, 59 N.Y.S. 11

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1899
• Status: Published

Opinion

MacLean, J.

The plaintiff brought this action for wages due for the months of February and March, 1899, under a contract of employment for the calendar year. The defendant alleged that the contract had been rescinded upon the plaintiff’s voluntary resignation and abandonment on the 14th of March. The defendant also alleged a tender to the plaintiff, on the 19th of April, which was after the commencement of this action, of the amount due him as wages up to and including the 14th day of March, together with interest and the costs and disbursements of the action, further, adding that he “now brings the said sum * * * together with interest thereon and the costs and disbursements of this action to date, into this court, ready to be paid to the plaintiff if he will accept the same.” As the learned justice rendered judgment for the defendant, it may he assumed that he considered the evidence sufficient to prove rescission of the contract. Even if he so found, he should have rendered judgment for the plaintiff to the amount of the indebtedness admitted by the allegation of the tender, for as the tender was neither accepted nor duly paid into court, it could not avail the defendant. § 732, Code Civ. Pro. The judgment should be reversed, with costs to the appellant to abide the event.

Freedman, P. J., and Leventritt, J., cortcur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.