
    E. Platt Stratton, Respondent, Appellant, v. Elizabeth J. Graham, Appellant, Respondent.
    Second Department,
    November 6, 1914.
    Tender — authority of attorney to receive tender or payment of claim in suit.
    While an attorney has general authority to receive tender or payment of a claim in suit, special circumstances may exist which will limit this agency.
    Hence, where, in an action for money paid, defendant counterclaimed for the return of certain diamonds alleged to have been deposited with and held by plaintiff as collateral security, and described in very general terms in a receipt taken some eight years before, atender by defendant’s attorney to the plaintiff’s attorney of the amount due and a demand for a return of the diamonds without the defendant being present, is ineffective to discharge the plaintiff’s lien, in view of a prior request by plaintiff’s attorney that the defendant should be personally present.
    Appeal by the defendant, Elizabeth J. Graham, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 22d day of December, 1913, as amended by a judgment entered in said clerk’s office on the 9th day of January, 1914. The judgment was entered upon the verdict of a jury rendered by direction of the court.
    Appeal by the plaintiff, E. Platt Stratton, from so much of said judgment as finds that the defendant is entitled to the possession of certain diamonds now in the possession of the plaintiff, which diamonds are claimed by defendant in her counterclaim, and as awards to said defendant possession of said diamonds, and six cents damages for the withholding of the same. Plaintiff also appeals from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 12th day of March, 1913, denying plaintiff’s motion for judgment on the pleadings.
    
      John W. Weed, for the plaintiff.
    
      Herbert C. Mason, for the defendant.
   Per Curiam:

To a complaint for money paid out for defendant’s use, a cause of action was counterclaimed for the return of certain diamonds alleged to have been deposited and held by plaintiff as collateral security. The answer alleged that the amount of plaintiff’s claim, with interest and costs, had been tendered to one of plaintiff’s attorneys, with a demand for a return of the collateral, which the attorney had declined. Upon a motion for judgment on the pleadings, the answer was held good, for such a tender was considered effective to discharge the lien, although made to an attorney and not to the plaintiff. (174 N. Y. St. Repr. 869.) Upon the trial, however, it appeared that after the action had been brought and some question of an adjustment raised, one of plaintiff’s attorneys wrote to defendant’s attorney that the plaintiff was ready to surrender the diamonds to defendant personally. “He desires to have her personally present when the diamonds are delivered. There is good reason for this in order that there may be no dispute hereafter touching their delivery.” The letter then stated the amount claimed, with interest and the costs. The court, however, following the decision on the prior motion for judgment, sustained the tender as discharging plaintiff’s lien.

Considering .that these diamonds were described in very general terms in a receipt taken some eight years before, and the possibilities of questions as to the identity of the stones or of their settings, such a precaution that defendant should receive them herself was not unreasonable. Nevertheless, the following week, a tender of the amount was proffered to the attorney, which he declined as he had not in his possession the diamonds, the delivery of which was made a condition of the tender. While an attorney has a general authority to receive tender or payment of a claim in suit, it is evident that special circumstances may exist which limit this agency. The present being such a case, it follows that in view of the terms of the prior letter, the so-called tender, without the defendant being present, was ineffective.

The judgment, therefore, must be varied so far as to make defendant’s recovery of possession of the diamonds dependent upon her payment of the amount theretofore adjudged to plaintiff for his debt, interest and costs; and as thus modified the judgment is affirmed, without costs of these appeals to either party.

Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Judgment varied so far as to make defendant’s recovery of possession of the diamonds dependent upon her payment of the amount theretofore adjudged to plaintiff for his debt, interest and costs; and as thus modified, judgment affirmed, without costs of these appeals to either party.  