
    KNIGHT against BEACH.
    
      Supreme Court, Eighth District; General Term,
    
    
      September, 1869.
    Tendee before Suit.—Payment into Court.—Answer Pleading Tendee.—Discontinuance •vitiiout Costs.—Waiver of Omission to Pay into Court.
    Although a summons has been delivered by plaintiff to the sheriff of the county of defendant’s residence, for service upon the defendant, yet, if the defendant tender to the plaintiff the amount of the demand in suit, before the actual service of the summons upon him by the sheriff, he may bring the money into court, and plead the tender as a tender before action commenced. The delivery of a summons to the sheriff is-the commencement of an action, only for the purpose of defeating the statute of limitations.
    Plaintiff’s attorney, receiving an answer of tender before suit, &c., waives the objection that the defendant has not brought the money into court, by going to trial upon the issue.
    If it appear in such case, that the money was tendered before suit, and was kept at all times in readiness, and it is actually paid into court upon the trial, the defendant may recover his costs.
    Appeal from a judgment.
    This action was brought by Obediah Knight against Erastus O. Beach. The facts in the case fully appear from the following opinion of George B. Bradley, Esq., of Corning, Referee, to whom the case was referred for trial.
    Bradley, Referee.—On the 25th day of February, 1868, the summons in this action was delivered to the .sheriff of Livingston county in good faith, to be served -on the defendant, who then resided and yet resides in ¡that county, and on the 9th day of March following, that ‘sheriff made service of the summons on the defendant. "The action was brought to- recover on a promissory note made by the defendant to the plaintiff—bearing date March 9, 1865, for $177.71,—payable 1st November then next-, with interest. The amount due on the 5th day of .March, 1868, did not exceed $215.00.
    Ou the 5th day of March, 1888 (four.' days before the service of the summons, and while the same was in the .sheriff’s hands for service), the defendant caused to be tendered to the plaintiff $215.00, in payment of the note, and the latter refused to accept the amount,—asserting as a reason, that costs had been incurred, which should also be paid by the defendant. The currency tendered was left in the hands of one Merrick, of whom the plaintiff was advised he could at any time receive the money.
    The plaintiff proceeded with his action, and the defendant afterwards served on the plaintiff, who received the same, an answer alleging the tender and refusal, concluding with the allegations “ that the defendant now brings the said sum of two hundred and fifteen dollars into this ¡court ready to be paid to the plaintiff, if he will accept the same.” But the defendant did not insert in his answer or serve with it a notice that the money had been paid into court; and in fact the money had not been paid into court. But on the trial the identical money tendered, having been preserved, was produced, and the plaintiff not accepting or taking the same, it was left in charge of the referee for the purposes of the action.
    The plaintiff now insists—
    1. That the delivery of the summons to the sheriff for service was a commencement of the action so as to require the payment by the defendant of costs, and being advised before and at the time of the tender, that such steps had been taken, he could not and did not relieve himself from liability by tendering merely the amount due on the note.
    2. That the tender was not, nor was the answer thereof effeytual, for the reason that the defendant did not pay the money into court and give notice thereof.
    The right of the plaintiff to costs at the time of the tender, depends upon the fact whether the action had been commenced and was then pending. If it was, the tender was insufficient; as the defendant, in that case, could not defeat that right, or afford himself a defense by tendering merely the amount due on the note. If the action had not been commenced and was not pending, the plaintiff had no right to insist on the payment of costs as a condition, for the right to costs depends entirely upon the statute which gives to a party costs in actions, while at common law no costs were given (3 Denio, 174).
    Tim manner of commencing actions and right to costs in them, are now prescribed by the Code, by which the question must be controlled and settled. That provides that “civil actions in courts of record of this State, shall be commenced by the service of a summons” (§ 127). And unless this section was qualified and limited by some other provision of the statute, it would seem that service was necessary to produce the commencement or pending of the action. Until the action is commenced, there is no action, for the production of costs.
    Attention has "been called to section 99, which provides that “An, attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered with the intent that it shall be actually served to the sheriff,” &c. By reference to the title referred to (title II.), it is found to be entitled: “Time of commencing actions,” and relates entirely to the subject of the time within which actions must be commenced, to defeat the defense commonly known of the statute of limitations. It is therefore quite apparent that the attempt referred to in section 99, is not to be deemed the commencement of an action for general purposes, but only for the purpose of defeating the operation of the statute of limitations, which has no application to this case. And the courts seem to so understand it (Wiggin v. Orser, 5 Duer, 118 ; Hull V. Peters, 7 Barb., 331 ; Farmer’s Loan & Trust Co. v. Dickson, 17 How. Pr., 478 ; Kerr y. Mount, 28 IF Y., 664).
    At common law, the delivering of the capias to the sheriff or officer to serve was (3 Johns. Cas., 145), for all purposes the commencement of the suit. But by the Revised Statutes, service was necessary to produce the com-' mencement of an action (2 Rev. Stai., 347, §1) ; except for the purpose of saving the subject of the action from the operation of the statute of limitations, in which case the delivery of the process in good faith to the sheriff, with intent to be actually served, was deemed the commencement an action (2 Rev. 8tat., 299, § 38). And the defendant was at liberty to defeat that effect of the attempt, by showing a want of such good faith and intent (§ 39 ; Madison Bank y. Keller, 2 Hill, 117; Jacks on y. Brooks, 14 Wend., 650).
    That no action was commenced for general purposes by any attempt short of actual service, under the Revised Statutes, is well supported by authority (Johnson 
      v. Comstock, 6 Hill, 10 ; Edmondstone v. Thomson, 15 Wend., 554 ; Hull ?>. Peters, 7 Barb., 331).
    There seems to "be some authority to support the position that after a plaintiff has retained an attorney who is proceeding to institute an action, and has taken some proceedings for that purpose, a tender of the amount of the debt by the defendant, will not be effectual unless he tenders or offers to pay the costs incurred in the proceedings to commence the action. This was held in Retan v. Drew (19 Wend., 304); and the latter case was cited with apparent approval, in Brown y. Ferguson (2 Denio, 196), and Johnson y. Comstock {6 Hitt, 10), although the question did not necessarily arise in the two latter cases.
    It is quite difficult to appreciate the principles upon which the decision in that respect, in Retan y. Drew, was based; It might be well to make such a rule, founded upon moral equity, as it would be just in many cases. It certainly would be so in this one ; and I should cheerfully follow the case last cited in reaching a conclusion, if the court at general term of the district in which this action is brought, and is pending, had not distinctly decided adversely to the decision in that respect in Retan y. Drew. In Hull y. Peters (supra), the court in that district has distinctly held that a tender of the debt merely, before suit actually commenced, bars the recovery ; and that any previous attempt short of a complete institution of the action does not require of the defendant the tender or payment of any costs. It is true, in that case the defendant was not advised that any proceedings with view to commencement of any action had been had. But it seems to me that the court, in the case of Hull y. Peters, have decided the question, and made the right to costs depend upon the existence of an action at the time of the tender. If the court do not so design to be understood, they should have the opportunity of relieving of the charge of disrespect one who might declare the rule adverse to such understanding of the decision.
    
      The closing portion of the opinion of the court seems to be independent of the previous portion, and furnishes a distinct ground upon which the decision might be placed, but the court seems to be committed to the former; and I feel bound to follow it in this case, and to deem the case of Retan v. Drew overruled for the purpose in that district. .
    The question now arises,—Has the defendant done all that was necessary to render his tender effectual as a defense, and is his answer sufficient ? In case of a tender at common law before suit, like the one in question, it undoubtedly is necessary, for the purpose of pleading it, for the defendant, when sued, to pay the money into court, and give notice at the time of serving his answer (Brown v. Ferguson, 2 Denio, 196 ; Eddy v. O’Hara, 14 Wend., 221 ; Wilder v. Seelye, 8 Barb., 411 ; Kortright v. Cady, 21 N. Y., 354).
    This the defendant did not do. He did not pay the money into court, nor did he serve with his answer the requisite notice to that effect. But the plaintiff’s attorney, notwithstanding this omission, received and retained the answer. This was a waiver of this defect in the defendant’s proceedings (Sheriden v. Smith, 2 Hill, 538 ; 1 Burr. Pr., 408).
    In the case last cited, the court say,—“ Whether the money was paid into court does not seem to be involved in the issue, and it was not therefore a question to be litigated on the trial. The sole question there was upon the fact of tender or not. The effect of not paying the money into court on a plea of tender, is a point of practice, to be dealt with summarily, like all questions of that kind. The omission to pay in the money was but an irregularity which the plaintiff waived by accepting a plea and taking issue upon it.”
    The plaintiff undoubtedly had the right to treat the answer as a nullity and return it, and enter his judgment for want of an answer when sufficient time after Service of the summons elapsed, on account of such omission (Simpson e. French, 25 How. Pr., 464 ; Wilder 
      v. Seelye, 8 Bari., 412 ; Sheriden v. Smith, 2 Hill, 540; 1 Burr. Pr., 407; Bao. Air., tit. Tender)..
    It seems, therefore, that the payment into court and notice thereof with answer, is no part of the act of tender, but are proceedings in practice, merely essential to make the tender effectual as a defense ; and consequently may be waived by the plaintiff, as any other omission or irregularity in practice may.
    But I apprehend that production of the money in court at the time of the trial is essential to complete the proof of tender and readiness on the part of the defendant (Roosevelt r. Bull’s Head Bank, 45 Bari., 584 ; Brooklyn Bank v. De G-rauw, 23 Wend., 342 ; Bao. Air., tit. Tender, I.).
    The defendant, it seems to me, did'not fail in this respect. The identical money was produced upon the trial before the referee, and is preserved under his direction for purposes which may be advised by the disposition of the action.
    In view of the positions taken above, the conclusion follows that the defendant has established his defense of tender.
    I do not apprehend that any order was necessary to be made for the payment of the money into court. The cases to which the plaintiff’s counsel has referred on that subject, have relation to payment into court after suit has been commenced. That is the right of a party sued, which has existed and been practised ever since the reign of Charles II. of England. No tender is in such case made, nor is the payment into court the subject of pleading ; but it can be done only pursuant to a rule entered, which is entered as of course if before plea, and upon order of a judge if after plea, notice of the payment to be given to the plaintiff; and such payment into court operates as a discharge to that extent of the claims alleged in complaint. The declaration to that extent is deemed stricken out (1 Wend., 103 ; 1 Burr. Pr., 408).
    Then there is a tender after commencement of action provided for Tby statute, which differs in some respects and effect from a tender at common law before action commenced. The tender pursuant to statute is not the subject of pleading ; nor does it bar a recovery of damages, unless accepted—but defeats the recovery of costs and interest, if sufficient in amount (13 Wend., 390).
    I have referred to these two classes- of tenders, and to the subject of payment into court, pursuant to “common rule ” so called, so that the cases relating to them may not be confounded in their application to the question in this case.
    If I am right in my conclusions, .the defendant must be entitled to recover his costs, and the, plaintiff is entitled to the money tendered, which is subject to his order.
    Judgment having been entered upon the conclusions of the referee in conformity with this opinion, the plaintiff appealed to the supreme court at general term.
    
      B. II. Holliday, for the plaintiff.
    
      S. B. Faulkner, for the defendant, respondent;
    As to the tender and costs, cited Supervisors of Onondaga v. Briggs, 3 Denio, 174; Hull v. Peters, 7 Barb., 336 ; Smith v. White, 7 Hill, 520 ; Kerr v. Mount, 28 N. Y., 664; Code, §99; 1 Howard's New Code, 428 and 129; which show how section 99 has been from time to time amended ; 16 How. Pr., 478; Wiggin v. Orser, 5 Duer, 120 ; Lee v. Averell, 1 Sandf., 731; Warfield v. Watkins, 30 Barb., 401; Johnston v. Braman, 5 Johns., 268; Hull v. Peters, 7 Barb., 331; Bendit v. Annesley, 42 Id., 192.
    As to the omission or delay in paying into court, —Sheriden v. Smith, 2 Hill, 538; 1 Burr. Pr., 408; Simpson v. French, 25 How. Pr., 464; Grah. Pr., 459 ; Bac. Abr., tit. Tender.
   Marvin, J.

The case in short is : the summons was delivered to the sheriff for service February 25, 1868, and it was served March 9.

On the 5th day of March, 1868, the defendant tendered the amount owing on the note to recover which, the action was brought. The plaintiff proceeded in his action ; and the defendant pleaded tender made on the 5th March, before action commenced, and that he had ever since remained and still is ready and willing to pay to the plaintiff said sum, but plaintiff has hitherto refused to receive the same; that he now brings the said sum of $215, into this court, ready to be paid to the plaintiff, if he will accept the same. The answer was retained by the plaintiff’s attorney, and the issues were referred to a referee for trial. The money tendered was not actually paid into court, nor was any notice of payment into court given to the plaintiff or his attorney. The identical money tendered was produced at the trial, and placed in charge of the referee ; and it had been at all times prior to the trial held in readiness for the plaintiff, as he was advised at the time of the tender it would be.

The referee decided that the defendant was. entitled to recover his costs in the action, and the plaintiff to receive the money tendered. Exceptions were filed by the plaintiff.

The referee has given to the questions raised a very full examination, as is evidenced by his able and elaborate opinion to which I have nothing to add; and we adopt it as the opinion of this court.

The referee followed in his decision Hull v. Peters (7 Barb., 331), decided in this district in 1849, Sill, J., delivering the opinion of the court, in which Retan v. Drew (19 Wend., 304), was declared to be a departure from settled principles, and not sustained by authority. Justice Sill referred to White v. Smith 4 Hill, 166 ; S. C., 7 Id., 520), in which the court for the correction of errors decided (reversing the supreme court), that a plaintiff may discontinue Ms action without paying costs at any time before he has notice of the appearance of ' the defendant, though the defendant may have retained an attorney to defend the action. This decision was subsequent to the decision of the supreme court in Re tan ». Drew, and Justice Sill was of the opinion that the principle established by it was applicable to the case he was considering, and should govern it. In that case I dissented, from an unwillingness to overrule Retan v. Drew. The case is an authority in point upon the question of the liability of the defendant to pay costs ; and the referee very properly followed it.

Asito the necessity of averring, with the plea of tender, the payment of the money into court, and paying it in, and giving notice, the general rule undoubtedly is as the plaintiff’s counsel claims; but it seems, from the authorities' cited by the referee in his opinion, that the omission to pay the money into court, and to give notice, is not fatal to the rights of the defendant, in case the plaintiff’s attorney retains the answer and goes to trial upon the issue of tender. The omission by the defendant to pay into court and give notice, is an irregularity, which is waived by the plaintiff by receiving and retaining the answer and going to trial.

In the present case the tender was kept good, and the money tendered was produced on the trial, and delivered to the referee. It had been kept in readiness for the plaintiff from the time of the tender. I think the referee made the proper disposition of the case, and, adopting his opinion, the judgment must be affirmed.

Barker and Lamout, JJ., concurred.  