
    Gerson Bieber, Appellant, v. Lewis Goldberg, Respondent, Impleaded with Others.
    Second Department,
    June 7, 1907.
    Practice — foreclosure —' tender—right to withdraw money paid into court.
    When, in an- action of foreclosure, the defendant, after tendering before suit installments due on the mortgage, pays the same into court to perfect the defense of tender, the money belongs to the plaintiff in any event, and he is entitled to withdraw it from the custody of the court.
    Appeal, by the plaintiff, Gerson Bieber, from an order of the County Court of Kings county, entered in the office of the clerk of said county on-the 1st day of March, 1907, denying the- plaintiff’s motion for aii order- permitting him to withdraw- certain moneys deposited .by the.defendant Lewis Goldberg in the office of the-city chamberlain of: the city of New York. •
    
      M. H. Newman, for the appellant.
    
      Aaron A. Feinberg, for the respondent.
   Jenks, J.:

The parties do not agree-, whether the second installment was in fact tendered before the suit-was begun, and the record is not clear upon-this point. Yet I think that we must .regard the purpose of the.payment of the sum of'the -two installments -into court was to make good the plea of tender before -the .suit was brought, within the rule, df Platner v. Lehman (26 Hun, 374), and of Wilson v. Doran (110 N. Y. 101). (See, too, Nichols N. Y. Pr. 2008, acases, cited.)., .

If-the defense of . tender, of amount due before action brought was established, the plaintiff could not take his decree of foreclosure, „ but only a money judgment against the defendants, less the defendants’ costs. (McCoy v. O'Donnell, 2 T. & C. 671; affd., 59 N. Y. 656.) The money, paid into court belongs'to the plaintiff in any event; his 'claim as ■. to that amount is deémed stricken from the ■complaint, - and hence .if the plaintiff’s, cause of action is- basedj, •wholly upon the non-payment of that sum, ancj limited thereto, he must fail.- (Wilson v. Doran, supra, 107.)

I think that the plaintiff was entitled to the order, and that the order of the County Court of Kings county must be reversed, with ten dollars costs' and disbursements.

Hirschberg, P. J., Woodward, Hooker and Miller, JJ., concurred.

Order of the- County Court of Kings county reversed, with ten dollars costs and disbursement's, and motion granted, with costs.  