
    HILL against PLACE.
    
      New York Superior Court; Special Term,
    
    
      April, 1867.
    Defenses in Action on Note.—Plea of Tender.— Payment into Count.—Protest.
    The deposit in bank of money to pay a note drawn payable at such bank, is not a payment, nor does it preclude the holder from sustaining an action against the maker for the amount due.
    Such deposit is simply a tender; and if pleaded in the suit thereafter brought, it bars recovery of interest subsequent to the tender, and of costs subsequent to payment into court, if plaintiff accepts the money; but if ho does not, and defendant on the trial establishes his tender, it bars the recovery of interest subsequent to the tender, and all costs, and entitles defendant to costs; but the plaintiff is still entitled to recover the amount of the note.
    It is essential to an answer setting up a tender, to aver that the money has been actually brought into court.
    In an action on such a note, it is not necessary to aver or prove demand of payment .at the place at which the note was payable, nor is it necessary to aver or prove protest, as against the maker.
    Motion for a new trial.
    'This action was brought by James K. Hill against George Place, on a promissory note, made by defendant, payable at the Hanover National Bank, in the city of New York.
    The defense set up was, that on the last day of grace there was sufficient money deposited in the Hanover National Bank to pay the note, which money was allowed to remain there for the purpose of paying the note, for several days.
    There was no allegation in the answer to the effect that defendant, simultaneously with putting in the answer, . brought the money into court, or to the effect that the money had been brought into court prior to the putting of the answer. In point of fact, the money had never been brought into court.
    On the last day of grace, between 10 and 11 o’clock in the morning, the note was presented at the bank for payment, and payment demanded, which was refused. Subsequently to this demand, the money to pay the note was deposited, but no notice of this fact was given to the holder of the note, nor was the note again presented for payment at the close of banking hours..
    There was proof that it is the custom to present notes for payment between ten and three o’ clock, but that the maker has until three o’clock to pay the note, and it cannot be protested until after three ; that, according to the custom, it is necessary, if a note on a presentment made prior to three o’ clock is not paid, to present it again after three o’ clock before it can be protested.
    The court directed a verdict for the plaintiff.
    The defendant now moved, on the minutes of the judge before whom the case was tried, for a new trial.
    
      William Weston, for the motion.
    
      J. R. Hills, opposed.
   Jones, J.

—The deposit in a bank at which a note is payable, of sufficient money to pay it, is not a payment of it, nor is it such an extinguishment that the holder cannot thereafter recover from the maker, in an action brought, the amount due on the note.

Such deposit is simply a tender of the amount, and as such, if properly pleaded to a suit thereafter brought, it bars the recovery of interest subsequent to the tender, and of all costs subsequent to the payment of the money into court, if the plaintiff accepts the money ; if, however, the plaintiff does not accept the money, but goes to trial, then, if defendant establishes his defense of tender, such defense bars the recovery of all interest subsequent to the tender, and all costs, and entitles the defendant to costs. But this is the only effect of a plea of tender. It does not in any event bar a recovery of the principal amount due, with interest to the day of tender (Wolcott v. Van Santvoord, 17 Johns., 247 ; Caldwell v. Cassidy, 8 Cow., 271 ; Grah. Pr., 454-460 ; Burrill's Forms, ed. May 4, 1840, 338).

Conceding then, that the tender in this case was sufficiently pleaded, still the plaintiff would be entitled to recover the amount of the note, although he would have to pay the costs of the action.

But the tender is not sufficiently pleaded. There is no allegation in the answer that the money then was, or theretofore had been, brought into court; and in point of fact, the money never has been brought into court.

To make a plea of tender good and sufficient, it is necessary, not only that the money should be actually brought into court, but that the answer should aver that fact (see cases above cited).

It, therefore, follows, that neither the answer nor the proof given under it, constituted a bar to plaintiff’s recovery of the debt, of the interest thereon, and of the costs of suit.

Defendant, however, suggests that plaintiff cannot recover unless he has demanded payment at a place at which the note is payable, and that such demand must be made after three o’ clock on the last day of grace.

Mo demand whatever is necessary to enable the plaintiff to maintain Ms action (Wolcott v. Van Santvoord, 17 Johns., 247).

Consequently, in this aspect of the case, it is unnecessary to consider the effect of a demand between ten and eleven in the morning, not followed up by a demand after three.

If the tender had been sufficiently pleaded, then the question might arise, whether a dejDosit made before three on the last day of grace, but after a demand and refusal at an earlier period of the day, would amount to a tender.

As under the present pleadings, it is unnecessary to pass on that point, I refrain from considering or intimating an opinion on it.

As it is wholly unnecessary, in any case whatever, to protest a note for non-payment as against the maker, the questions as to whether the custom proved to exist in the city of New York, that a note payable at a bank on a certain day cannot be protested until after three p. me. of the last day of grace, can be allowed to have any effect at all, and, if it has any effect, then what that effect is, do not ( arise for decision.

Motion for a new trial must be denied with $10 costs.

From this decision the defendants appealed to the court at general term-, where the cause was heard, and in Oct., 1867, the decision reported was affirmed upon the grounds stated in the foregoing opinion. No further opinion was delivered by the court at general term.  