
    Jacob Pinsky, Respondent, v. Isidor Goldsmith, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Sales — conditional — action to foreclose lien of contract —■ trial — evidence — pleading.
    All installments of the purchase price under a contract for the conditional sale of certain fixtures and like articles relating to the equipment of a cigar and stationery store conducted by defendant were paid except two represented by notes given by the buyer, and the contract provided that for failure to pay any installments upon maturity all future installments should immediately -become due and payable. In an action to foreclose the lien of the contract and to have the property covered thereby sold, based upon an alleged default in the payment of the first of the unpaid installments of the purchase price, it appeared that defendant upon receiving notice that his notes were held by a trust company and bank mailed to it at maturity a certified check payable to the order of the bank which the trust company received and returned the same day and presented the note for payment at defendant’s address and protested it for nonpayment. Held, that defendant having already paid the note according to his justifiable understanding was entitled to disregard a demand that he take the matter up with the bank; that such demand would-not support the action.
    It having been stipulated on the trial that plaintiff had put the four notes given in the transaction in the hands of the trust company and bank, a letter from the trust company mailed to defendant acknowledging the receipt of and return of the certified check, was admissible in evidence.
    A tender and payment into court of the amount of the note given for one of the unpaid installments of the purchase price was sufficient and the effect thereof was not destroyed by a counterclaim for damages based on a partial breach of the contract of conditional sale nor was plaintiff under necessity of putting in any evidence in support of the prima facie ease on the note.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, in favor of plaintiff, after a trial by the court without a jury.
    Henry Brill, for appellant.
    William L. G-reenfogel, for respondent.
   Philbin, J.

The action was brought to foreclose the lien of a conditional sale agreement and to have the personal property covered thereby sold to enforce the lien. The pleadings were oral. The answer was a general denial and a counterclaim for $100 which, it developed on the trial, was based upon an alleged failure of the plaintiff to fully comply with the terms of the said agreement of sale. The counterclaim was dismissed by the court on the ground that it was not available as a defense in an action to foreclose a lien. - The agreement provided for the conditional sale to the defendant of certain fixtures and like articles relatisg to the equipment of a cigar and stationery store conducted by the defendant, for five hundred and fifty dollars. That sum was to be paid in various instalments, all of which were paid, except one of twenty-five dollars and forty-four cents, due on. first March, and one for twenty-five dollars due on 1st April, 1916. They were represented by notes given by the defendant to the plaintiff. It was provided in the agreement that the failure to pay any instalment upon maturity would cause all future instalments to become due and payable immediately..

The action was based upon an alleged default in the payment of the March instalment. The defendant claims that it having been shown on the trial that payment of the note was duly tendered on the first of March, the date of maturity, and that the tender was kept good, the complaint should have been dismissed. Shortly before the note matured, the. defendant received the following communication:

11 The Chatham & Phenix National Bank, U. S. Mortgage & Trust Co., 125th St. & Eighth Ave.
“ This is to advise you that your note for $25.44 which will be due and payable March 1st, 1916, is held by this bank.
I. Goldsmith, 3866 Broadway, City.
, “ Only cash or certified check accepted in payment.”

It was stipulated on the trial that the plaintiff had put the four notes given in the transaction, including the March note, “ in the Chatham & Phenix National Bank, United States Mortgage & Trust Company, 125th. Street and Eighth Avenue. ’ ’ Just what relation the two corporations had to each other or to the notes was not developed, although, as it later appears, the trust company protested the March note. The defenddant on the date of maturity and at five o’clock in the morning mailed a certified check for twenty-five dollars and forty-four cents to the trust company, but it was made to the order of the bank. The place of mailing was in the same section of the city and the check was received on the same day, as appears by a letter from the trust company. This letter bears date the 1st of March, 1916, and says the company is returning the check, as the item you intended to take up has been returned by us to the Chatham and Phenix National Bank. We would .suggest that you take the matter up direct.” The letter was not received by defendant until the next day, the 2d of March, 1196. Notwithstanding all this, the trust company presented the note for payment at defendant’s address, where it was made payable, and protested the note for nonpayment. The defendant having already paid the note according to his justifiable understanding was entitled to disregard the demand. The letter last referred to was not received in evidence upon the trial owing to an objection by the plaintiff, but it should have been, in view of the concession made on the trial as to the relation of the trust company to the note. Upon the return day of the summons in this action, the defendant made a tender of performance and of payment. The amount of the tender, twenty-five dollars and forty-four cents, being the sum- called for by the- note, was paid into court. The plaintiff insists that the tender made at the trial was not good because of defendant’s counterclaim and in support of his contention cites Wood v. Hitchcock, 20 Wend. 47, in which it was held that the counterclaim there pleaded destroyed the effect of the tender because the defendant would not allow that he was even liable to the full amount of what was tendered. That was not the situation here. The defendant did not question his full liability on the March note, and his counterclaim related only to an alleged partial breach of the contract which, he said, gave him a right to compensation for the injury caused by the breach. Under the issues thus formed, the plaintiff was under no necessity of putting in any evidence in support of prima facie case on the note.

The failure of the defendant to pay the note upon maturity must in all the circumstances be found due to the refusal of the holder to accept payment and not to any default on his part. A sufficient tender of payment was made and kept good to excuse defendant from further performance.

There were what purported to be two judgments entered against the defendant, although it does not appear that that was the intention. The first entry was in the usual form, but stated: “ See special form of judgment.” Thereafter, a form appropriate to a foreclosure judgment was entered. The first provided for the payment of fifty-one dollars and fifty cents, and the second for seventy dollars and fifty cents. In view of the conclusion that plaintiff is not entitled to judgment in any form, it is unnecessary to give further consideration to the irregularity than to say that the first judgment ceases to be of any effect upon the reversal of the second one.

Gut and Bijub, JJ., concur.

■ Judgment reversed, with thirty dollars costs, and complaint dismissed, with costs.  