
    Abraham Ellenstein, Appellant, v. Jacob Klee et al., Respondents.
    (New York Common Pleas
    —General Term,
    April, 1895.)
    The provisions of the Code authorizing a tender after suit brought are not applicable to District Courts.
    A tender which does not include costs is ineffectual.
    Where the justice finds that the plaintiff has a claim which the money paid into court will satisfy, and no tender was made before suit brought, he should render judgment in the plaintiff’s favor for the amount found to be due.
    Appeal by the plaintiff from' a judgment of the District Court for the fourth judicial district, in favor of the defendants.
    
      J. Rieger, for appellant.
    
      L. Ilarburgér, for respondents.
   Daly, Ch. J.

The record shows that the parties appeared in the District Court on December 21, 1894, after service of the summons, and the “ plaintiff complained against the defendants as follows: Work, labor and services on an assigned claim, and the said defendant answered as follows : General denial, breach of contract, tender $17.05; $17.05 paid to clerk Dec. 21-95 ” (evidently a mistake for 1894).

So proof of tender before suit was brought was offered on the trial, and the justice, according to the record, “ rendered judgment in favor of the defendant and against the plaintiff. $17.05 paid to clerk December 21-94. Judgment for the defendant. Amount paid into court is sufficient to pay the plaintiff’s claim.”

As there was no evidence of tender before suit, we are to assume that no such plea was intended by the answer, and that the seventeen dollars and five cents was meant to be a tender at the time of the joining of issue. The provisions of the Code authorizing tender after suit brought (§ 731 et seq.), do not appear to be made applicable to District Courts (§ 3347, subd. 6), and if they were there was yet no tender of costs and it was ineffectual. Eaton v. Wells, 82 N. Y. 576.

If the offer of judgment allowed by the old Code (§§ 64, 68) is still applicable to District Courts, then that practice was not pursued in this, case, for there was no offer of judgment made.

As the justice found that the plaintiff had a claim which the money paid into court was sufficient to satisfy, he should have rendered judgment in plaintiff’s favor for the amount due. He could only render judgment in defendant’s favor on proof that tender had been made before suit.

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

Bischoff and Pryor, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  