
    Louis Bernstein, Appellant, v. John Levy et al., Respondents.
    Appeal from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan., in favor of the defendants.
    Louis J. Jaco ves, for appellant.
    Jacob Rieger, for respondents.
   O’Gorman, J.

The assertion of defendants’ counsel in his brief that tender was made before suit, is without a word in the record to support it. A defense of tender after action commenced, must include interest and costs' to the time of tender. The amount paid into court in this case, did not embrace interest and costs to the time of tender, and the defense was therefore ineffectual, and on the rendition of judgment for plaintiff, the justice should have allowed him a full bill of costs.

Judgment will be modified accordingly, and as modified, affirmed with costs of this appeal and disbursements to the appellant.

Andrews, P. J., and Blanchard, J., concur.

Judgment modified, and as modified, affirmed, with costs of this appeal to appellant.  