
    JOHN KELLY, Plaintiff and Appellant, v. THOMAS H. WEST et al., Defendants and Respondents.
    Tekdeb befobe Suit.
    1 Effect of.
    
    1. A good and sufficient tender before suit brought does not bar a recovery for the principal of the demand, and interest thereon, to the time of tender.
    
      Before Monell, Curtis, and Sedgwick, JJ.
    
      Decided November 29, 1873.
    1. This is so, although the money tendered has been kept ready for the plaintiff ever since the tender, and was offered on the trial to be produced in court and paid over to the plaintiff.
    But,
    2. It does bar the recovery of all interest subsequent to the tender, and all costs, and entitles the defendant to recover costs.
    2. What is btfore suit.
    
    1. A tender on the day of the signing of the summons, but before its service, is before suit brought.
    Appeal from a judgment entered upon a verdict for the defendants by direction of the court.
    The facts .sufficiently appear in the opinion of the court.
    
      Weeks, Forster & De Forest, attorneys, and of counsel for appellant.
    
      J. H. and W. L. Vanduzer, attorneys, and of counsel for respondents, urged:
    The plaintiff receiving an answer of. tender before suit brought, waives the objection that the defendant has not brought the money into court by going to trial upon the issue ; and if the money was so tendered before suit brought and afterward kept in readiness for plaintiff, and actually brought into court on the trial, the judgment must be for the defendant.
    (a) . The answer alleges tender.
    (b) . The plaintiff went to trial on the issue.
    (c) . The money has been kept in readiness ever since, and actually brought into court on the trial (Knight v. Beach, 7 Abb. N. S. 241; and cases cited; Gould v. Banks, 8 Wendell, 567 ; Carman v. Pultz, 21 N. Y. 549).
   By the Court.—Curtis, J.

The plaintiff sues to recover the proceeds of a consignment of peaches to the defendants for sale. The defendants answer that they have tendered the plaintiff the amount of such proceeds after deducting the usual and ordinary commissions and expenses. The evidence showed that the defendants were entitled to the sum they claimed for commissions and expenses, and that on the day the summons bears date, and four days before its service, 'they offered to one of the plaintiff’s attorneys, at their office, in legal tender, the balance due the plaintiff, which the plaintiff’s attorney declined to accept, and he was thereupon notified that the money was ready for the plaintiff at any time he wished to have it, and that it had been ready ever since. On the trial the defendants’ counsel offered to produce the money now in court.

The question arises whether the tender made was sufficient to prevent a recovery by plaintiff. This was not a statutory tender, for that can only be made after the action shall be commenced (2 R. S. 554, § 20). The present action was not commenced when the tender was made. The signing of the summons on that day was not a commencement of the action (Code, § 99 ; Kerr v. Mount, 28 N. Y. JR. 659).

Consequently the tender can only take effect as a common-law tender, the effect of which is simply, “ that “ if the plaintiff does not accept the money, and on the “trial the defendant establishes his defence of tender, “then such defence bars the recovery of all interest “subsequent to the tender, and all costs, and entitles ‘ ‘ the defendant to costs, and does not in any event bar “ a recovery of the principal amount due, with interest ‘£ to the day of tender.’ ’ if"otwithstanding any confusion there may have been in decisions elsewhere, the courts in this State have uniformly held, that where a debt exists, a tender of the money, though it be refused, does not extinguish the debt, but only goes to the question of interest and costs (Weston y. Barker, 12 John R. 276 ; Wolcott v. Van Santvoord, 17 John. R. 253 ; Caldwell y. Cassidy 8 Cow. 271; Brown v. Furguson 2 Denis. 179; Hill v. Place, 36 How. P. R. 26, affd. at Gen. T. ; Knight v. Beach, 7 Abb. N. S. 249).

It was error in the court to hold that the establishment of the defence of tender barred the plaintiff’s right to recover the principal amount of his debt, and to direct the jury to find a verdict for the defendants.

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