
    ST. JOHN a. THORNE.
    
      Supreme Court, First District; Special Term,
    October, 1855.
    Admission of Past of Plaintiff’s Claim. — Satisfaction.
    The Court will not order satisfaction of a part of plaintiff’s claim admitted by the answer, where the answer shows the defendant has frequently offered to pay the sum admitted, but the plaintiff has refused to receive it, and it does not appear, upon plaintiff’s application, that the defendant is now able to pay it.
    Motion that defendant be required to satisfy part of plaintiff’s claim, admitted by bis answer to be just.
   Mitchell, J.

The action is for rent; the answer denies the indebtedness in the amount claimed, but admits that $145 are due, and alleges that the defendant frequently offered to pay it, and that the plaintiff refused to receive it.

The answer does not admit that the defendant has this money “ in his possession, or under his control,” and thus does not come within the second paragraph of subdivision 5 of § 244 of the Code ; but the last paragraph of that section applies wherever the defendant in his answer admits part of the plaintiff’s claim to be just, and then the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order, as it enforces a personal remedy. In a case like this, the Superior Court has refused to make the order, because the plaintiff had refused to accept the money when offered to him, (Smith v. Olssen, 4 Sandford, S. C. R. 711). The words of the Code “ may order,” confer a discretion on the court; and until it appears that the defendant is able to pay, it is most discreet not to order him to pay when the plaintiff has once refused to accept payment when offered to him.

Motion of plaintiff denied, without costs.  