
    Frances M. Taylor, Respt, v. The Brooklyn Elevated Railroad Co., App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed November 25, 1889.)
    
    1. Tender—Money deposited belongs absolutely to plaintive.
    Defendant tendered $200 and costs, and on its refusal deposited the money in court. Defendant succeeded on the trial. Held, that the money so deposited belonged absolutely to the plaintiff and her right to receive the same could not he successfully questioned.
    
      3. Same—Not waived by proceeding to trial.
    Plaintiff does not waive the benefit of a tender by proceeding with the trial, nor is the tender necessarily a nullity because notice of its payment into court is not given. Service of such notice may be waived.
    Appeal from order directing payment to the plaintiff of moneys deposited with the court by the defendant.
    
      Hoadley, Lauterbach & Johnson, for app’lt; Bailey & Bell, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover damages for the alleged negligence of the defendant. On February 18, 1889, and prior to the trial of this action, defendant tendered to plaintiff $200 in liquidation of her claim, and sixty-five dollars for accrued costs; this tender was refused, and thereupon, on the same day, defendant obtained an order by which it was “ Ordered: 1. That the defendant have leave to bring into court and deposit with the clerk thereof the sum of $200 admitted by it to be due the plaintiff herein, together with sixty-five dollars, plaintiff’s costs to date.

“2. That thereupon, unless the plaintiff shall accept the sum in full discharge of this action, the same shall be deducted from any recovery thereon, and the sum shall be paid out of court to the plaintiff or her attorney, etc.”

Said sum of $265 was accordingly deposited with the clerk of this court pursuant to said order.

Subsequently this action was tried and defendant had a verdict.

After the trial, defendant applied for an order directing that said deposit be returned to it, and about the same time plaintiff sought to obtain an order for the payment of said sum to her. Both applications coming on to be heard at the same time, an order was made directing the payment of the amount so deposited to the plaintiff, and from that order defendant now appeals.

Defendant’s proceedings as to this tender and deposit were taken under §§ 731, 732, 733 and 734 of the Code of Civil Procedure. These sections are substantially a re-enactment of the provisions as to tender formerly contained in the Revised Statutes, 2 R. S., 553, §§ 20, 21, 22 and 23, with the further requirement that the money tendered must be paid into court, and notice thereof given. § 732.

Under these provisions of the Code, plaintiff has a right to draw out the money so deposited and to proceed with his action, leaving the question of costs subsequently accruing to be determined by the result of the action There is nowhere any such change of these provisions as to alter the force of the decisions heretofore made as to the title to or ownership of the fund deposited.

In Slack v. Brown, 13 Wend., 390, the court say (p. 394): “When money is brought into court, the plaintiff is, at all events, entitled to it. Any other construction would be unjust,” citing 1 Saund., 33, note 2 ; 2 Archb. Pr., 203.

In Dakin v. Dunning, 7 Hill, 30, the court say: “The sum brought into court belongs to the plaintiff in any event.”

In Becker v. Boon, 61 N. Y., 317, the court say (p. 322): “The object of payment into court is to place the money tendered where plaintiff will be sure to get it. It then becomes the plaintiff’s, and the defendants cannot dispute his right to it.”

Wilson v. Doran, 39 Hun, 88, contains a carefully considered opinion citing many authorities on the question of tender. In that case defendant had a verdict; yet the court say: “If that (the alleged tender) was made, and the money brought into court, the plaintiff was entitled to it, notwithstanding the verdict. * * * At common law, payment of money may, when tender has been made before suit, and when no tender has been made, be paid into court, and when so paid into court the money becomes that of the plaintiff, and the defendants cannot, in any event of the action, take it out.” While it is true that the judgment in this case was reversed in the court of appeals, 110 N. Y., 101; 16 N. Y. State Rep., 852, yet the opinion of that court sustains the conclusions of the general term as to the right of the plaintiff to the sum tendered, the reversal being on another point.

It seems to us plain from the above cited decisions that the right of the respondent to the amount deposited cannot be successfully questioned.

The learned counsel for the appellant, in his very elaborate brief, attempts to draw a distinction between tender and tender of awards. It is a sufficient answer to his argument that neither the Revised Statutes nor the Code make any such distinction; the provisions as to both are precisely the same, and we can see no reason why the decisions above quoted are not as applicable to tender of awards as to tender in an action on contract.

A further point is made by the learned counsel for the appellant, that by proceeding with the trial plaintiff waived the benefit of the tender. This point cannot be sustained. By the Code, plaintiff had a right to proceed with the trial and to prove the circumstances under which she claimed to hold defendant liable in damages to an amount greater than the sum tendered.

Nor was it, in any sense, a waiver, as contended, because plaintiff failed to request the trial court to charge the jury that she was in any event entitled to the moneys in question. In the first place, the order under which the deposit was made prohibited plaintiff on the trial from giving any evidence of the tender, so that it could not be before the learned trial judge, and secondly, § 734 of the Code prescribes the practice to be adopted in such cases.

It is to be noted that in the order appealed from, prepared by appellant’s counsel, the sum deposited “ is admitted by it to be due the plaintiff herein” and it is further provided “that the sum shall be paid out of court to the plaintiff or her attorneys.” We have, however, in our conclusions, laid no stress on the phraseology of the order appealed from, preferring to base our judgment entirely on the law as we find it to be.

Nor was the tender a nullity, as claimed, because notice of the payment into court was not given the plaintiff. In Wilson v. Doran, supra, the court of appeals held that “it is undoubtedly competent for the plaintiff to waive the service of the statutory notice.

Defendant had another course open to pursue, of which it might have availed itself to attain the end sought by the tender and deposit; it could have offered to allow judgment for the sum it admitted to be due with costs; it endeavors to explain its failure to do this in its affidavit by alleging that there was not sufficient time between the tender and the anticipated day of trial to make a valid offer pursuant to the Code. If this be the case, defendant has only itself to thank for its present position; as by an earlier preparation for trial it would undoubtedly have been able to avail itself of the provision as to offer to allow judgment if so advised.

We are accordingly of the opinion that the order appealed from should be affirmed.

Order affirmed, with costs.

Clement, Ch. J., concurs.  