Railway Advertising Co. v. Posner

31 Misc. 783, 65 N.Y.S. 226

Opinion

Per Ouriam.

In this case the justice found that the defendants were indebted to the plaintiff in the sum of $377, but gave judgment for the defendants, with costs. This conclusion was evidently reached upon the theory that there had been a sufficient tender of the amount due before suit, but the defendants, to avail themselves of this defense should have pleaded the tender, and kept the tender good by paying the same into court. Becker v. Boon, 61 N. Y. 317. They did-neither, and the judgment was, therefore, improper. Without considering the other errors assigned, the judgment should be reversed.

Present: Beekmae, P. J., Giegebich and O’Gobmah, JJ.

Judgment reversed and new trial ordered, with costs to appel-

lant to abide event