
    Frances M. Taylor, Resp’t, v. The Brooklyn Elevated Railroad Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 18, 1890.)
    
    Tendee—Monet paid into court.
    Where a defendant pays into court a certain amount with costs to date, under the provision of the Code, he runs the risk of losing that amount of moneys in the event of his success upon the ensuing trial. Such moneys belong to the plaintiff in any event.
    Appeal from judgment of general term, city court of Brooklyn, affirming order directing payment to plaintiff of moneys deposited with the court by defendant.
    Before the trial of this action, the defendant, upon an affidavit of a previous tender on its behalf in full liquidation of plaintiff’s claim and to cover costs to date, obtained an order granting to it leave “ to bring into court and deposit with the clerk thereof the sum of $200 admitted by it to be due the plaintiff herein, together with sixty-five dollars costs to date.” The order also provided: “ (2) That thereupon unless the plaintiff shall accept the sum in full discharge of this action, the same shall be deducted from any recovery thereon and the same shall be paid out of court to the plaintiff or her attorneys; that on the trial of the issues joined herein said plaintiff shall not be permitted to give evidence that any such tender has been made.” Hpon the trial the jury rendered a verdict for the defendant. Thereafter the court ordered the payment of the deposit to the plaintiff. From the order of affirmance at general term the defendant has appealed here.
    
      Wm. K Cohen, for app’lt; James D. Bell, for resp’t.
    
      
       Affirming 27 N. Y. State Rep., 44.
      
    
   Gray, J.

We think the order was right. The moneys belonged to the plaintiff from the moment of their deposit, by force of their payment into court under this order.

The provisions of the Code permit this procedure by a defendant in all actions brought for the recovery either of a sum certain, or of damages for a casual or involuntary personal injury. They provide for the tender of such a sum of money as the defendant conceives to be sufficient to make amends for the injury, together with the costs to date. The appellant’s counsel contends, however, for a distinction between a tender of amends, as he insists this was, and an ordinary tender at common law or under the Bevised Statutes. He says that the former implies no concession of liability, but is an offer to buy peace and hence, if not accepted by the plaintiff, does not below to him if the verdict goes adversely to his claim. The distinction, however, is not recognized and it does exist under our system of procedure.

The Code provides for two courses which may be pursued by the defendant after suit brought. He may make a tender of a certain sum and, if it is refused, he may deposit it in court; or he may offer to allow judgment to be taken against him for a certain sum with costs. If the former course is pursued its meaning and result are plain. A tender is not effectual under the Code “ unless the money is accepted, or is paid into court.” If it is not accepted, in lieu of the acceptance and in order to make his tender available in law, the defendant may deposit the amount in court. The payment into court is thus deemed equivalent to an acceptance by the plaintiff of the amount tendered. The money deposited is deemed in law a payment to the plaintiff on account, of the contract obligation, or of a conceded liability for the injury. The provisions of the Code in question, however, are similar to those which existed previously in the Eevised Statutes; except that the additional requirement has been made that the moneys should be paid into court and notice thereof given concerning them.

It was held in Slack v. Brown, 13 Wend., 390, and in Dakin v. Dunning, 7 Hill, 30, that when the money was brought into court it belonged to the plaintiff in any event. In the more recent cases of Becker v. Boon, 61 N. Y., 317, and Wilson v. Doran, 110 id., 101; 16 N. Y. State Rep., 852, Judge Earl, delivering the opinion in the former, and Judge Andrews in the latter case, it was assumed by them that moneys paid into court by a defendant, under a tender, became the property of the plaintiff in all events and that his title to them cannot be disputed. The Eevised Statutes and the Code have extended the common law right of tender, so as to permit a tender of moneys or their payment into court where the tender is refused, during the pendency of an action. But the effect under the statutes, as now under the Code, has always been considered to be that the plaintiff recovers in any event the amount of the tender. Judge Bradley, at general term, in the case of Wilson v. Doran, 39 Hun, 90, collected the authorities in the English reports and in this state and has there reviewed them. The plaintiff runs the risk, in proceeding after a tender or deposit, of paying defendant’s costs, if the recovery falls short of the amount tendered; while the defendant, in such a case, runs the risk of losing that amount of moneys in the event of his success upon the ensuing trial.

When the moneys are brought into court they become the plaintiff’s and it is immaterial, as to the question of their ownership, what the result of the trial may be. This result is a just one. The defendant had two courses available to it under the Code which regulates the procedure in civil actions. It elected to take that one which involved the tender or payment of money to the plaintiS and paid the money into court upon the refusal of its tender, under an admission of liability pro tanto, and to make sure that the plaintiff could not say that she had not been paid so-much in any event.

The order appealed from should be affirmed, with costs.

All concur.  