
    James P. Foster, App’lt, v. Morris Mayer, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    1. Mortgage—Cancellation—Tender.
    An action to cancel a mortgage, after refusal of a tender of the amount due, cannot be maintained unless the plaintiff, at. the time of the commencement of the action, brings the money into court.
    2. Same—Acceptance.
    Where, however, the plaintiff subsequently brings the money into ' court, and the defendant insists upon, and is allowed to take it, this constitutes an acceptance of the tender, and gives the plaintiff the right to have the bond and mortgage canceled upon terms.
    Appeal from a judgment of the special term of this court dismissing the plaintiff’s complaint, with costs of action.
    
      E. Schenck, for app’lt; Wolf, Kohn & Ullman (Sol Kohn, of counsel), for resp’t.
   Van Brunt, P. J.

This action, undoubtedly, was brought upon an erroneous theory; it being supposed that under the rules laid down in Kortright v. Cady, 21 N. Y., 343, and subsequent cases in the same line, where a tender had been made of the amount due upon a bond and mortgage, which tender had not been accepted, the lien of the mortgage being lost, the mortgagor had a right to come into a court of equity, and have .the lien discharged of record. This position upon the part of the plaintiff, unless, at the time of commencing the action, he brought the money into court, was entirely untenable, as a court of equity will not, by its decree, grant equitable relief, unless the plaintiff does equity. But it appears that subsequently, in order to obtain equitable relief in this action, the plaintiff brought the money into court, being the amount of principal and interest upon the bond and mortgage, and the defendant insisted upon taking it, and, under the decision of this general term, was permitted to receive it. 48 St. Rep., 295. By such action the defendant accepted the tender, and consequently the plaintiff was entitled to have the bond and mortgage canceled. If the defendant had desired to insist upon the invalidity of the tender, and that the money was not brought into court in time, and that, therefore, he should be permitted to go on with the foreclosure of the mortgage, he certainly should not have insisted upon the receipt of the money deposited in this action pursuant to the order of the court. As has already been stated, the acceptance of such money after it had been paid into court was an acceptance of the tender, and then the only question which remained was upon what terms the plaintiff was entitled to the relief of having the bond and mortgage canceled. If any other rule obtained, the result of these proceedings would be that the defendant would have the money represented by the bond and mortgage in his pocket, and still hold the lien represented by the mortgage against the property of the plaintiff, which is certainly not equitable or proper. The court, therefore, erred in dismissing the complaint, although at the time of the commencement of the action the plaintiff, probably, was not entitled to any relief. The subsequent proceedings, however, acquiesced in by the defendant, gave him the right to have this bond and mortgage canceled upon terms to be fixed. We think, therefore, that the judgment should he reversed, and a new trial ordered, with costs to appellant to abide the final event.

Pollett and Parker, JJ., concur.  