
    Joseph Heller, Appellant, v. Solomon Katz and Isaac E. Newburger, Respondents.
    (Supreme Court, Appellate Term,
    February, 1909.)
    Municipal Courts' — ¡Review — Decision — When appellate court cannot determine whether error exists.
    Tender — In general: Effect of tender in general — Upon right to costs; Upon right to defend against further claim: Right to amount tendered.
    In an action upon contract, a tender by defendant of a sum less thaai tlhe amount claimed, with payment thereof into court, is, regardless of the final result of the action, a conclusive admission of the indebtedness sued for to the extent of the tender and vests the title thereto in -tihe plaintiff, and a judgment in his favor for a less amount cannot affect his right to the amount paid into court.
    Where a plaintiff proceeds with an action after a tender and deposit o-f the amount claimed, ¡he is liable for costs if he recovers less than the amount of the tender; but the defendant, if successful, loses the amount tendered.
    The fact that a defendant in an action upon contract made a tender and payment into court does not preclude him from opposing any claim by plaintiff beyond the sum tendered, upon any ground consistent with an admission of the original contract or cause of action.,
    Where, in an action to recover commissions on sales consisting of about fifteen items, the court .in rendering judgment for plaintiff did not intimate which of the items it allowed or disallowed, and it is impossible to determine whether or not the court erred in the amount of its. judgment, which was less than the amount tendered, by defendant and paid into court, the judgment will be reversed and a new trial ordered.
    Appeal by the plaintiff from a judgment in Ms own favor, rendered in the Municipal Court of the city of Hew York, first district, borough of Manhattan.
    Thomas J. O’Neill, for appellant.
    Kneeland, La Fetra & Glaze, for respondents.
   Gildersleeve, J.

The action is to recover commissions, claimed to amount to $316.38, under a contract which is claimed to be substantially as follows: The plaintiff was to receive five per cent, commission on yearly sales up to $15,000, seven and a half per cent, upon yearly sales in excess of $15,000 and less than $20,000-; and ten per cent, upon yearly sales in excess of $20,000; and the defendants were to pay plaintiff his traveling-expenses in a selling territory, specified in the contract, and plaintiff was to receive commissions on all orders received from the specified territory, whether or not the sales were personally made by plaintiff. The defendants admit substantially this employment of plaintiff, and in their answer allege “ that, in or about the .month of January, 1908, defendants tendered to plaintiff the sum of $136.91, in full settlement of plaintiff’s alleged claim, and that defendants have been ever since, and now are, ready and willing to pay the sum of $136.91, with interest, to plaintiff, and hereby tender and pay the sum of $140.53 into court.” Upon the trial there was considerable controversy as to the various items upon which plaintiff claimed commissions, and the court gave judgment for plaintiff in the sum of $66.25. Plaintiff appeals, and urges that he is entitled to judgment for at least $140.53, the amount of the tender and deposit. At the end of the record appears the following statement, viz.: “ * * * the court rendered judgment in favor of the said plaintiff against the said defendant for the sum of $66.25 damages,” without any reference to the money deposited in court under defendants’ tender; and defendants’ counsel urges that there is no evidence of any money having been actually paid into court, beyond the above quoted allegation of the answer. This contention of defendants’ counsel is not well founded; for, at the opening of the case, defendants’ counsel specifically called the court’s attention to the fact that the tender had been made and the money deposited in court, and the court stated in reply to this statement of counsel: “We have all that before us.” Furthermore, we find an indorsement on the summons, which indorsement is signed by the justice, and reads as follows: “ Judgment for the plaintiff for $66.25, damages; amount of judgment to be deducted from amount in court, and balance paid to defendants.” Section 20 of the Municipal Court Act provides that the provisions of the Code of Civil Procedure and rules and regulations of the Supreme Court, as they may be from time to time, shall apply to the Municipal Court as far as the same can be made applicable, and are not in conflict with the provisions of this act; but in case of such conflict this act shall govern.” There is no provision of the Municipal Court Act that conflicts with sections 731, 732 and 733 of the Code, permitting and regulating tenders of the kind in suit. It is a well-settled rule that, under the provisions of the Code in reference to tender, such a tender by the defendant, in an action upon contract, of a sum less than the amount claimed, and payment thereof into court, is a conclusive admission of the indebtedness to the extent of the tender, regardless of the final result of the action, and vests the title thereto in the plaintiff, although he does not accept it and makes no effort to secure the money; and not only does the defendant lose all right to it, but the court itself has no power to make an order or render a judgment in the same action which effects a retransfer of the title. Mann v. Sprout, 185 N. Y. 109. 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. Taylor v. Brooklyn El. R. Co., 119 N. Y. 561. The fact, however, that defendant has made a tender into court, thereby admitting the contract or duty and the right of plaintiff thereon to the sum tendered, does not prevent defendant from opposing any claim by plaintiff, beyond the sum tendered, upon any ground consistent with an admission of the original contract or cause of action. Wilson v. Doran, 110 N. Y. 101. In the case at bar, the court below had the right, and it was its duty, to give judgment in such a sum as, under the proofs, plaintiff was entitled to receive; but the fact that the court found the rightful indebtedness to be only $66.25 does not in any way deprive plaintiff of his right to the deposit of $140.53. Over this sum the court had no power, as we have said; and, should the clerk refuse to pay it to plaintiff, the latter has his remedy to compel such payment. So far as the merits of the case are concerned, there appear to be about fifteen items upon which plaintiff claims commissions under the contract above quoted; and, as the court does not intimate which of the items it allowed and which it disallowed, it is impossible to determine whether or not the court fell into error in arriving at the sum of $66.25 as the amount of commissions due to plaintiff. In the interests of justice a new trial should be granted.

Giegerich and Seabury, JJ., concur.

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