Kingston Bank v. Gay

19 Barb. 459, 1854 N.Y. App. Div. LEXIS 148

• Court: New York Supreme Court
• Decided: September 4, 1854
• Status: Published

Opinion

By the Court,

Harris, J.

To constitute a payment, money or some other valuable thing must be delivered by the debtor to the creditor, for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose. In this case, the debtors forwarded to the plaintiffs money to pay their debt. But the plaintiffs refused to receive it in payment. Instead of doing this, they informed the defendants that the money was subject to their order. The note, therefore, was not paid. The creditor did not consent to receive the money in payment, and . without such consent there could be no payment. If the defendants intended to protect themselves against the costs of the action, they should have withdrawn the deposit and made a tender of the amount.

[Albany General Term, September 4, 1854.

Wright, Watson and Harris, Justices.]

Whether the plaintiffs were entitled to costs before the suit had been actually commenced, or not, the plaintiffs were entitled to recover in this action, unless the defendants had a right to set off the amount of the deposit against the note. A set-off is, in legal effect, a cross action, and cannot be allowed, except in a case where a suit might have been maintained by the defendant upon the same demand. In this case, no such suit could be maintained without proof of a demand of the money. It was held by the plaintiffs as the bailee or depositary of the defendants. Before they would be liable in an action for the money, it must be demanded of them. (Downes v. Phoenix Bank, 6 Hill, 297. Adams v. Orange County Bank, 17 Wend. 514.) Neither the defense of payment nor that of set-off having been sustained, the referee was right in reporting in favor of the plaintiffs. The judgment should, therefore, 'be affirmed.