
    JOSEPH HORNTHAL and others, Resp’ts, v. SAMUEL HENDERSON AND ANOTHER, APP’LTS.
    Tender of payment—Sufficiency of.
    Appeal from a judgment recovered on a verdict of a jury, directed by the court.
    
      William J. Gaynor, for appl’ts; F. A Burnham, for resp’ts.
   Daniels, J.

The verdict was recovered for a balance of an account amounting to the sum of $124.75 and interest thereon The defense made to the action was that the defendants had tendered payment of it before the comencement of the action and that the plaintiffs were not entitled to interest. To support the defense it was proved that on the 17th of October, 1885, the defendants executed and delivered their check to the plaintiffs for the balance of the account. This check was retained by them until the second or third of November, when it was returned with a copy of the summons and complaint in this action. There was no dispute of the right of the defendants to draw the check for this amount on the Mechanics’ bank And it was made to appear by the evidence of one of them that their account was good and had. continued so for the amount.

Before it was drawn on the 5th of October, 1885, the plaintiffs sent to the defendants for a check for this amount, for the balance of their account, and informed the defendants that they expected the check before the eighth, or they would then sue them without further notice,

No suit was however commenced before the service of a copy of a summons and complaint at the time already stated and no objection was returned by the plaintiffs to the defendants to receiving and accepting the check until the check was returned with a copy of the summons and complaint.

These facts supply evidence from which it might have been concluded if the case had been submitted to the jury, that when the check was received by the plaintiffs they accepted and retained it as a compliance with their demand designing to avail themselves of it, by obtaining upon it the payment of their debt, and if they did that, then they had no right afterwards to disaffirm the transaction, as the check was good, and return it to the defendants

The case was consequently one to be submitted to and decided by the jury, and upon the propriety of the direction given to them to return a verdict in favor of the plaintiffs for the amount of the balance of the account, the defendants are entitled to the benefit of all inferences or presumptions, which the jury might have drawn from the evidence and facts in the case. An exception to the direction was taken by the defendants. That exception is-supported by the evidence which was given in the case That the answer presented the defense as a tender, which had been kept good by the deposit of the money in court was not such a variance as deprived the defendants of the defense arising upon the facts proved by the evidence. For no question whatever was raised upon the trial as to the admissibility of the evidence received in the case

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Brady, J., concur.  