
    Augusta A. Wilson, App’lt, v. S. Gregor Doran et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed June 19, 1888.)
    
    1. Tender and payment into court—Effect thereof as an admission
    OF THE TITLE OF THE PLAINTIFF TO THE CAUSE OF ACTION.
    The defendants in their answer, after alleging the tender of a certain sum, and that they have ever since remained and still are ready to pay the sum tendered, aver that “they now bring the said sum into court ready to be paid to the plaintiff if she will accept the same.” Held, that the tender and payment of the sum tendered into court admits the contract or duty sued upon, and the right of the plaintiff under the contract to the sum tendered. That the admission in such a case goes no further, and that it is open to defendant to defend against any claim by the plaintiff beyond the sum tendered upon any ground consistent with an admission of the original contract or cause of action.
    2. Same—Tender before suit brought—How made to be available.
    A tender before suit brought, to be available, must not only be pleaded, but the defendant before or with his plea must pay the money into court, so that it may be subject to the plaintiff’s order, quaere whether it is necessary that the plea should be accompanied by a notice to the plaintiff’# attorney that the money had been paid into court.
    3. Same—Tender after suit brought—How made to. be available— Code Civ. Pro., § 732—Notice of payment into court may be waived.
    A tender after suit brought does not avail the defendant “ unless the money is paid into court and notice thereof given to the plaintiff’s attorney before the trial and within ten days after the-payment.” But it is competent for a plaintiff to waive the service of the statutory notice.
    4. Same—Notice of payment into court—What does not constitute a WAIVER OF SERVICE OF SAID NOTICE.
    The failure of the plaintiff to return the answer, which contained several defenses, and among them the defense of tender before suit, or to otherwise raise the question before trial, is not a waiver of the right to insist on the trial that the money paid into court was not a good tender after suit brought, by reason of the fact that the statutory notice was not given.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment in defendants’ favor entered upon a verdict rendered by a jury at the Monroe county court, and from an order denying the plaintiff’s motion for a new trial founded upon the minutes.
    
      James S. Garlock, for app’lt; John N. Beckley, for resp’ts.
    
      
       Reversing 39 Hun, 88.
    
   Andrews, J.

It was held by the general term that the title of the plaintiff to the demand in suit was put in issue by the pleading, and we concur in that opinion. Bennett v. The Leeds Manufacturing Co., MSS., decided June 19, 1888, ante, p. There was no substantial conflict in the evidence upon the point that the original assignor, before his assignment to Davis & Co., had by virtue of a general assignment for the benefit of his creditors transferred all his interest in the stock transaction out of which the claim in controversy arose, to his general assignee.

If there was nothing, else in the case, the non-suit was properly directed on the question of title, because the fact of this prior transfer left nothing to be transferred by George W. Wilson, the plaintiff’s husband, to Davis & Co., his immediate assignees, and Davis & Co., had nothing which they could transfer to the plaintiff. The judgment should therefore be affirmed, unless the fact that the defendants in their answer pleaded a tender before suit brought to George W. Wilson and to Davis & Co., of the sum of $189.30, on the cause of action sued upon, and concurrently therewith paid the money tendered into court, entitled her to litigate the question of the amount of the defendants’ liability beyond the sum tendered, independently of the question of the plaintiff’s title, or unless it entitled her at least to judgment in her favor for the amount tendered.

The defendants in their answer, after alleging the tender of the sum stated, and that they have ever since remained and still are ready to pay the sum tendered, aver that they now bring the said sum into court, ready to be paid to the plaintiff, if she will accept the same.”

It is insisted on the part of the plaintiff that the defendants by the plea of tender and the payment of the money tendered into court, admitted not only the existence of the cause of action set out in the complaint, and the right of the plaintiff to the amount tendered thereon, but, also, her title to the entire cause of action and her right to recover damages beyond the amount tendered, although in fact she has no title, if the proof would justify a recovery of a greater amount, if the action had been brought by the true owner. The authorities upon this question have been elaborately considered by the general term in the prevailing opinion.

It is admitted that the tender and payment of the sum tendered into court admits the contract or duty sued upon, and the right of the plaintiff under the contract and assignment to the sum tendered. But we understand the authories to hold that the admission in such a case goes no further, and that it is open to a defendant to defend against any claim by the plaintiff beyond the sum tendered, upon any ground consistent with an admission of the original contract or cause of action. The defendant may, notwithstanding, insist upon the statute of limitations, payment beyond the amount tendered, or other defense. Cox v. Parry, 1 Term Rep., 464; Reid v. Dickons, 5 Barn. & Ad., 499; Meager v. Smith, 4 id., 673; Spaldiny v. Vandercook, 2 Wend., 431.

It having been shown, therefore, that the plaintiff had not acquired title to the original cause of action, her right to recover thereon beyond the sum admitted by the tender, was upon the same principle defeated.

The remaining question relates to the non-suit granted by the trial court, notwithstanding the plea of tender. This cast upon the plaintiff the costs of the action. The rule is well-settled that a tender before suit brought, to be available, must not only be pleaded, but the defendant before or with his plea must pay the money into court, so that it may be subject to the plaintiff’s order, and it was, also, necessary under the former practice that_ the plea should be accompanied by a notice to the plaintiff’s attorney that the money had been paid into court. Brown v. Ferguson, 2 Denio, 196; Sheriden v. Smith, 2 Hill, 538; Dixon v. Clark, 5 C. B., 366. This having been done, if the tender was admitted or proved, and the plaintiff did not establish a right to recover a greater sum than the amount tendered, the defendant was entitled to a verdict or non-suit.

* The conclusion was founded upon the reason that the money paid into court belonged in any event to the plaintiff, and the claim as to that amount was deemed to be stricken from the complaint, and if the plaintiff was not entitled to any more, she failed in the action. See Becker v. Boon, 61 N. Y., 317; Platner v.Lehman, 26 Hun,374; Murray v.Bethune, 1 Wend., 191.

If, therefore, in this case the tender before suit brought, alleged in the answer, had been conclusively proven, the non-suit was .properly directed, unless the failure of the defendant to prove notice given to the plaintiff of the pay ment of the money into court entitled the plaintiff to judgment for the amount tendered.

The answer, as has been seen, made profert in curia of the sum tendered. The plaintiff made no objection to the sufficiency of the plea, and went to trial upon the issues in the case, including that of tender. The duty of giving notice of the payment into court of the sum tendered, on a plea of tender before suit, was a matter of practice not prescribed by statute. In this case the money was in fact paid into the court, and, under the authorities, the plaintiff, by' proceeding under circumstances such as are disclosed by the record, waived the irregularity. Sheriden v. Smith (supra); Platner v. Lehman (supra.) But the fact of tender was in issue and was litigated on the trial. It was conceded that the defendants tendered the sum mentioned in the answer, before suit to some one, but it was claimed by the plaintiff that the tender was insufficient because made to George W. Wilson, and not to Davis & Co., to whom the former had assigned the stock. The evidence raised a question of fact whether the tender was made to the proper person. The court could not, therefore, properly take this question from the jury, and it follows that the judgment cannot be supported on the ground that there had been a sufficient tender before suit brought, made effectual by the subsequent payment of the sum tendered into court.

The defendants are, therefore, we think, compelled, in order to support the non-suit, to establish that there was a legal tender after suit brought, under the provisions of the Code of Civil Procedure (sections 731, 734), based upon sections of the Revised Statutes, 2 Rev. Stat., 533, sections 20, 23. _

_ But it seems to us to be a conclusive answer to the claim to resort to these provisions to uphold the non-suit, that section 732 of the Code, one of the sections regulating the subject of tender after suit brought, expressly enacts that a tender does not avail the defendant, “unless the money is paid into court and notice thereof given to plaintiff’s attorney before the trial, and within ten days after the payment,” and in this case it does not appear that there was notice, and the tender was objected to on the trial upon this ground.

The giving of notice in case of tender after suit brought is no longer mere matter of practice under the regulation of the court, but a part of the prescribed statutory procedure. It is undoubtedly competent for a plaintiff to waive the ■service of the statutory notice, but we do not think that the former decisions in respect to notice, to which we have referred, justify the conclusion that the failure of the plaintiff to return the answer, which contained several defenses, and among them the defense of tender before _ suit, or to-otherwise raise the question before trial, is a waiver of the right to insist on the trial that the money paid into court was not a good tender after suit brought, by reason of the fact that the statutory notice was not given. Becker v. Boon, supra.

It would be unjust to the plaintiff, who, so far as appears, never had notice of the actual payment of the money into court.

We are of opinion that a new trial should be granted on the ground that the question of tender before suit brought, should have been submitted to the jury.

The judgment should- be reversed.

All concur.  