Livingston v. Harrison

2 E.D. Smith 197

• Court: New York Court of Common Pleas
• Decided: November 15, 1853
• Status: Published

Opinion

By the Court. Ingraham, First J.

The action was for balance of rent, and the answer was a denial, payment and tender.

The inconsistency of this defence is apparent. The defendants deny that they made the contract; aver that they paid the plaintiff what was due upon the contract, and then allege that they offered or tendered to the plaintiff, in payment, $75. It never was allowed to a defendant to plead such defences together. The plea of tender admits the indebtedness, and the plaintiff is entitled to receive the amount tendered.

The evidence to show that the defendants were bound to pay the increased rent is positive, though the court below appears to have been governed by the receipts produced for rent at the rate of $300, as concluding the plaintiff. Upon this point it was within the province of the court to decide, and we do not interfere with such finding.

The evidence of a tender, however, is not sufficient. The admission is, that $75 was tendered before suit—at what time is not stated. The rent became due on the 1st May, 1853. From that time it bore interest. The defendants should have proven a tender, on that day, of $75, or, if afterwards, of the interest up to the time of tender with the debt. Proof of a tender before suit was not sufficient.

Even admitting that the amount tendered was sufficient, still the defendants lose the benefit of such tender on this issue, by not paying the same into court at the time of their answer. The plaintiff is entitled to that sum, and to a judgment therefor. (Greenl. Pr. 248; 2 Hill, 538.)

Ordered accordingly.