
    Emma Hulda Beil, Appellant, v. Supreme Council, American Legion of Honor, Respondent.
    
      Payment into court by the defendant of an amount admitted to be due — effect of its withdrawal by the plaintiff.
    
    The defendant in an action upon a benefit insurance certificate interposed an • answer alleging that a less sum than that claimed by the plaintiff was due, and subsequently paid such sum with costs and interest into court pursuant to an order stating that “ unless the plaintiff shall accept the same in full discharge of. this action, the same shall be deducted from any recovery.” Thereafter the money so deposited was paid to the plaintiff under an exparte order which stated “that such payment shall not be made in full discharge of this action, but shall be made, and the payment to be made only pro tanto, upon the defendant’s obligation herein, and such sum shall be deducted from the amountof any recovery had by the plaintiff herein.”
    
      Held, that the plaintiff’s acceptance of the money did not discharge the defendant from further liability, as under the provisions of the Code of Civil Procedure (§§ 731-734) pursuant to which, ¡only, payment into court, after action brought, can be made, the effect of the tender was to confer title upon the plaintiff to the money tendered, and to enable the defendant to recover costs from the time of the tender, if the plaintiff recovered less than the amount tendered.
    Appeal by the plaintiff, Emma Huida Beil, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of March, 1899, discontinuing the action and directing the plaintiff to deliver to the defendant the benefit certificate upon which the action is based.
    
      JGdwa/rd 8. Seidman, for the appellant.
    
      Alfred J. Oarr, for the respondent.
   O’Bbien, J.:

The action was brought to recover $2,000 on a certain benefit insurance certificate issued to the plaintiff’s husband, Carl Beil, deceased. The answer, dated November 21, 1898, sets forth that Carl Beil committed suicide, and that, therefore, only a pro rata proportion was due this plaintiff, in accordance with which $939.38 had been that day (November twenty-first) tendered, her and refused. An •order was granted November 30, 1898, permitting the defendant to pay the sum mentioned, with costs and interest, amounting in all to '$990.76, into court, the order stating that unless the plaintiff shall accept the same in full discharge of this action, the same shall be deducted from any recovery.” By an ex parte order dated January 28, 1899, the money paid into court was turned over to the plaintiff, the order stating “ that said payment shall not be made in full discharge of this action, but shall be made and the payment to be made only pro tanto upon defendant’s obligation herein, and said sum shall be deducted from the amount of any recovery had by the plaintiff herein.” The defendant made a motion, and on March 28, 1899, obtained the order discontinuing the action from which this appeal is taken.

It is insisted that, upon withdrawing the money from the court, the plaintiff took it witli the condition imposed that she thereby discharged the defendant from further liability. This was the view taken by the learned judge below and what seems to have influenced him particularly, as shown by his memorandum, were the terms of the order under which the moneys were deposited. If, however, the terms of that order were controlling, it will be noted that it was provided therein that, unless accepted in full discharge, the sum deposited should be deducted from any recovery. jSo, also, in the ex parte order obtained directing the payment, the plaintiff elected not to take the money in: full settlement, hut only as payment in part. If, however, the tender and deposit in court were made pursuant to the provisions of the Code of Civil Procedure (§§ 731-734), the terms of neither order are controlling, for these sections establish the rights of the parties. They provide how the tender shall be made, how kept good and the effect thereof; and when a deposit is made pursuant thereto, it is beyond the right or power of the' parties to annex conditions contrary to the statute.

The distinction must not be lost sight of between a compromise or an acceptance of payment where there is an honest difference as to the amount due made between the parties out of court and a tender after action brought under the Code. An instance of the former is well illustrated by the case of Nassoiy v. Tomlinson (148 N. Y. 326) where the statement or rule as laid down in Fuller v. Kemp (138 N. Y. 231) was cited with approval- to the effect that “£ when a debtor offers a certain sum of money in full satisfaction of an unliquidated demand, and the creditor accepts and retains the money, his claim is canceled, and no protest,, declaration or denial on his part, so long as the condition is insisted upon by the debtor, can vary the result.’ ”

These and similar cases are clearly distinguishable from the case at bar, where, after suit brought, the moneys were deposited in court to keep the tender good pursuant to the provisions of the Code. The order under which the payment into court was made, stating that it was done ££ according to the statute in such case made and provided,” shows that the defendant had in mind a payment into court pursuant to statutory enactment; but apart from this it may be said that, in this State, payment into court after action brought, can be made only pursuant to the Code provisions. These, among other things, provide that If the plaintiff takes out the amount paid in, he accepts the tender,” (§ 732); ¡and (by § 733) that, if the sum so tendered is sufficient to pay the plaintiff’s demand, the latter t£ cannot recover costs or interest from the time of - the tender,, but must pay the defendant’s costs from that, time ; ” and, finally (by § 734), that “ if the plaintiff proceeds in. the action,. after accepting the tender, the sum accepted must be deducted from the recovery.”

It will thus be seen that the effect of the tender, if sufficient, is to give the defendant the benefit of costs, while conferring upon the plaintiff the right and title to the moneys deposited. This was directly held in Taylor v. Brooklyn Elevated Railroad Co. (119 N. Y. 561), where the syllabus correctly summarizes the decision as follows: Under the provision of the Code of Civil Procedure in reference to tender. * * * and payment into court of the money tendered, in case of refusal to accept * * * when the money is so brought into court, it belongs to the plaintiff, and his title thereto cannot be disputed whatever may.be the result of the action. The plaintiff in proceeding after a tender and deposit, simply runs the risk of paying defendant’s costs if the recovery falls short of the amount tendered, while the defendant takes the risk of losing the amount tendered in the event of his succeeding in the action.”

We think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to discontinue denied, with ten dollars costs.

Van Brunt, P. J., Barrett, Rümsey and Patterson, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  