
    GAGLIOSTRO v. CAPRORALE.
    (Supreme Court, Appellate Term.
    March 24, 1899.)
    Appeal—Objections Waived.
    Where, in an action for rent, the evidence shows an unconditional tender, and a refusal to accept, before suit brought, payment of the money into court, and dismissal without objection or exception, such dismissal will not be reviewed because of the refusal to allow costs.
    Appeal from municipal court, borough of Manhattan, Second district.
    Action by Antonio Gagliostro against Rosina Caprorale. From a judgment dismissing the complaint, plaintiff appeals.
    Affirmed.
    Argued before FREEDMAN, P. J., and MacLEAN and LEYEN-TR1TT, JJ.
    Joseph Gifuni, for appellant.
    Donlellan & Andrews, for respondent.
   FREEDMAN, P. J.

The amount claimed by the plaintiff herein was the sum of $50, for accrued rent. Upon the return day of the summons the parties appeared in person and by their respective attorneys. The defendant stated that he called upon the plaintiff, and offered to pay him the $50 claimed by him; that the plaintiff refused to accept the money, and told the defendant to see his attorney; that he (defendant) called upon the plaintiff’s attorney, and offered him the money; that the said attorney wanted $7 costs; and that at this time he (the defendant) had not been served with a summons in the case. These facts were not disputed, and the plaintiff specifically admitted that the offer of payment to him was made before suit was brought. It was also admitted the money was then paid into court to satisfy the plaintiff’s claim. The court, upon these statements and admissions, thereupon dismissed the action, without costs, and without objection or exception thereto by plaintiff.

This case differs materially from Ellenstein v. Klee, 12 Misc. Rep. 112, 33 N. Y. Supp. 94, and from the case of Braumen v. Vanderpool (recently decided by this court) 56 N. Y. Supp. 216. In the case at bar there was a clear, unconditional tender made, and a refusal to accept, before suit brought, payment of the money into court, and a dismissal of the complaint, without objection or exception taken. The record is therefore conclusive in favor of the correctness of the judgment rendered.

Judgment affirmed, with costs. All concur.  