
    John P. McNeil, Appellant, v. The Sun and Evening Sun Building, Mutual Loan and Accumulating Fund Association, Respondent, and James R. Howe, as Register of the County of Kings, Defendant.
    
      A tender alleged in an action to cancel a mortgage must be kept good —what denial-entities the defendant to object that it was not kept good.
    
    A mortgagor who brings a suit in equity to procure the cancellation of his mortgage, alleging that he has tendered to the mortgagee the amount due upon the-mortgage, and that such tender has been refused, is bound to keep his tender good'.
    A denial in the answer, of an allegation of the complaint, that the plaintiff “duly tendered to said defendant corporation the said, sum * * * in full-satisfaction and accord of indebtedness,” is sufficient to entitle the defendant to raise the objection that the tender was not kept good.
    Appeal by the plaintiff, John P. McNeil, from a judgment of the Supreme Court in favor of the deféndant, The Sun and Evening Sun Building, Mutual Loan and Accumulating Fund Association,, entered in the office of the clerk of the county of Kings on the lifthday of May, 1901, upon the decision of the court, rendered after a. trial at the Kings County Special Term, dismissing the plaintiff’s complaint upon the merits.
    The action was brought to cancel a bond and mortgage executed by the. plaintiff to the defendant building and loan association, the plaintiff alleging that he had tendered to the defendant association the amount due upon said bond and mortgage and that the defendant association had refused to accept such tender.
    
      Cornelius J. Earley, for the appellant.
    
      EEerbert Eeeves, for the respondent.
   Jenks, J.:

The evidence sustains the decision at Special Term that the sum tendered was not sufficient to discharge the mortgage.debt. There can be no question whether the taxes paid by the defendant were chargeable in the amount due, as the mortgage specifically authorizes such payment and such charge. The evidence is undisputed that the taxes were paid prior to the tender of August 2, 1900. It appears that the secretary of the defendant furnished a statement to plaintiff upon' request, and that' therefrom the plaintiff figured the amount of his tender. The statement is dated May 19, 1900. The plaintiff testifies that he received it about March 1, 1900, but that he did not make tender until August 2, 1900. This statement does not purport to show the amount due upon the mortgage, but in form appears to sustain the testimony of the secretary that it was a statement of dues, arrears and deductions representing the account of the plaintiff as a stockholder in the defendant corporation. Instead of depending on a calculation upon such a statement for the amount to be tendered upon the mortgage several months later, I see no reason why the plaintiff, by simple inquiry, could not definitely have ascertained the exact amount thereof.

Further, as in this case the mortgagor sues in equity for affirmative relief, the plaintiff was bound to keep his tender good. (Tuthill v. Morris, 81 N. Y. 94; Werner v. Tueh, 127 id. 217; Nelson v. Loder, 132 id. 288.) There is no pretense that he did so. On the contrary, he testifies that after he made tender he returned the money to his brother, from whom he had obtained it. He did not even have the amount tendered with him in court. The learned counsel for the plaintiff insists that the defendant is precluded from taking the objection that the tender was not kept good for the reason that he did not plead this omission. The plaintiff complained that he had “ duly tendered to said defendant corporation the said sum * * * in full satisfaction and accord of indebtedness,” and the defendant denied that the plaintiff duly tendered, etc. I think that the plea of due tender may be held to imply the allegation that the plaintiff has done in the premises all that the law requires to constitute a tender in such a ease. ■ I think that the case was correctly disposed of by the learned Special Term (Mr. Justice Dickey presiding) and, therefore, the judgment must be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  