
    DAVID W. SWEET, Respondent, v. JAMES L. TITUS and ANDREW R. TITUS, Appellants.
    
      Payment—when delivery of cheek is not—creditor not bound to receive either check or money.
    
    The delivery of a check is not a payment, unless there be an agreement to that effect, or unless the drawer, in consequence of some laches on the part of the holder, has sustained loss or injury in respect thereof, and then only pi'o tanto. (The Syracuse, Binghamton and N. Y. R. R. Co. v. Collins, 3 Lansing, 29 and cases cited ; Hill v. Beebe, 13 N. Y., 566; Bradford v. Fox, 38 id., 289.)
    The creditor is not bound to accept a check, even if it be for the entire amount of his claim. He is not bound to receive money. He may, although it be sent to him, refuse to accept it and leave the debtor to his plea of tender when sued for the claim. He may do this even though, having received the money, he keeps it subject to the order of the debtor. The latter must withdraw the money and plead a tender, and thus save himself from the costs of the controversy. (The Kingston Bank v. Gay, 19 Barb., 460.)
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    
      J. H. & W. L. Van Derzee, for the appellants.
    
      E. E. Harding, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.  