
    CORA MOFFATT, et al., Respondents, v. JAMES HENDERSON, Appellant.
    
      Payment after suit brought—what does not constitute.—Costs—how running of stopped. —Pleading.
    
    By covenant in defendant’s lease it was provided, that the annual charge for Croton water rent upon the premises should be paid by him upon a certain day, and “if not so paid, the same shall be added to the quarter’s rent then due ” plaintiff. Defendant failed to pay such water rent for two years, the amount in arrears being $88.00, for which plaintiff brought this action. Defendant paid said sum to the city after service of the summons and complaint, and answered with a general plea of payment. The court directed judgment for the plaintiff for the amount claimed and costs, and ordered the sum paid by defendant to the’ city to be credited on such judgment.
    
      Held, that such payment and plea did not relieve defendant of the costs of the action.
    The plea of payment in the answer, being general, should be held to relate to the time of the commencement of the action.
    Defendant’s failure to pay before the time fixed in the covenant, raised a contract debt to plaintiffs, who were primarily liable to the city, which defendant could not thereafter discharge by payment to the city.
    Defendant, if he desired to stop the running of costs, should have made a tender under section 731, Code Civ. Proc., or an offer to compromise under section 738.
    Before Freedman and Russell, JJ.
    
      Decided December 4, 1882.
    Appeal from a judgment upon a trial by a single judge, a jury trial having been waived.
    By certain conveyances the plaintiffs became the owners and lessors, and the defendant the lessee, of certain premises in Forty-sixth Street, kept as a livery stable. The lease contained the following covenant on the part of the lessee: “To pay the regular annual rent or charge which is or may be assessed or imposed according to law upon the said premises for the Croton water, on or before August 1, in each year during the term, and if not so paid the same shall be added to the quarter’s rent then due.”
    The annual Croton water rent for the year beginning May 1, 1880, and for the year beginning May 1, 1881, $40 each year, was not paid before the commencement of this action. In consequence of such non-payment certain penalties were imposed amounting to $8. After the commencement of this action, and on September .21, the defendant, without the knowledge of the plaintiffs, paid to the Department of Public Works the amount of both the annual rents, above referred to with the extra charges and intérest. In the year 1879, a charge, denominated a meter rate, or charge, was made by the Department of Public Works for Croton water furnished to the defendant at the said leased premises, as ascertained by a water meter on the premises, amounting to the sum of $165.85, and the same, not being paid, was returned to the office of the Clerk of Arrears, in the Finance Department of the City, in July, 1880, and became subject to interest at the rate of seven per cent, per annum from October 27, 1879. This meter charge, with interest, amounting to $182.40, was paid by the plaintiffs after the commencement of this action, and on February 25, 1882.
    The learned judge below found that the plaintiffs were not entitled to recover for the last named sum because it was not paid before the commencement of their action, and that they were entitled to judgment for the sum of $88 and costs, but that the judgment should be marked by the clerk of the court on the docket thereof as having had the sum of $88 paid thereon and that the plaintiff should not collect on the judgment nor issue execution thereon for any sum exceeding the amount of their taxed costs.
    The defendant’s answer, verified October 20, 1881, contained the following allegation: “For a further and separate defense, defendant alleges that he has paid all the regular annual rents or charges which have been assessed or imposed according „ to law upon the said premises for the Croton water, since the assignment to, and acceptance of said lease by the defendant.”
    
      Henderson & Tompkins, and S. Jones, for appellant.
    
      Joseph A. Welch, for respondents.
   By the Court.—Horace Russell, J.

The only question raised by this appeal is, whether the payment by the defendant of the $88—the only sum due the plaintiff, as found by the learned judge below—after suit brought and before the answer was served, relieved the defendant from the payment of the costs of the action.

There can be no doubt, that a defendant may plead anything occurring before answer, amounting to a defense—not as a defense, but as a bar to the further maintenance of the suit; and after answer served, a defendant is usually permitted, upon terms, to set up by supplemental answer any facts which would bar the further maintenance of the suit. Before the Code, it was a matter of course to permit a plea puis darrein continuance to be filed. While it was done by the order of the court, that was merely a matter of form (Bate v. Fellowes, 4 Bosw. 638). Since the adoption of the Code, it is almost as much a matter of course to permit the filing of a supplemental answer, but it is at the same time, almost as much a matter of course to impose the payment of the accrued costs, as a condition, and such other conditions as the justice of the case may demand. But I do not understand that the filing of a plea puis darrien continuance, before the Code, relieved a defendant from the payment of the accrued cost, such as there would be, if there had been a continuance. Since the Code it is usual, as I have said, to make provision on that subject - in the order permitting the supplemental answer. The original answer in this case was delayed until after the defendant paid to the Commissioner of Public Works the amount of that portion of the plaintiffs claim, which the judge held the plaintiffs entitled to recover.

There are several objections to the defendant’s position. In the first place, his answer does not constitute a plea puis darrein continuance. It alleges payment generally, and as the rights of the parties were to be determined by the condition of affairs at the time suit was brought, the plea of payment in the answer ought to be held to relate to the time of the beginning of the action. There are no words in it to indicate that the payment was made after the complaint was served.

In the next place, by the covenant in the lease if the tenant failed to pay the water rates before August 1, they were to be added to the quarter’s rent then due. The lessors were primarily liable to the public authorities for the water rate. The defendant became liable to pay them only in consequence of the terms of the lease. His failure to pay before August 1, raised a contract debt from him to the plaintiffs which he could not thereafter discharge by payment to a third person, even though that third person were the one to whom he had originally agreed to pay. Payment to the third person, then, without the order, certainly without the knowledge, of the plaintiffs, was not good payment of a debt which, by the terms of the lease, was then owing directly to the plaintiffs. It is much more than doubtful whether the defendant’s plea of payment in his answer was sustained by the proof, and whether, if technicalities were to be adhered to, the judge below had the right to give the direction that the amount of the defendant’s payment should be credited upon the judgment docketed by the clerk. It may be that the receipt of the sum sued for, after suit, would amount to a waiver of costs (Bendit v. Annesley, 27 How. Pr. 184; Willis v. Chipp, 9 How. Pr. 568). And it was held in Brown v. Richardson (7 Robt. 57), that where leave was given to file a supplemental answer alleging payment, it was to be assumed that provision for accrued costs was made on the motion, so that the final costs could follow the judgment. But Reiner v. Doerge (61 How. Pr. 143), and the cases cited therein, do not support the proposition that the general defense of payment to an action for a debt due a plaintiff, is made out by proving that after suit brought the defendant paid the sum sued for to the plaintiff’s creditor.

The Code has expressly fixed the method by which a party may stop the running of costs against him, by tender after suit brought (§ 731): or, by offer to compromise (§ 738). The plaintiffs were entitled to the costs which accrued up to the time of the payment in any event.

If the defendant wished to stop the running of costs against him, he should have either tendered the amount and costs accrued up to that time, or made the offer contemplated in section 738.

The judgment below was more favorable than the defendant had a right to expect. It should be affirmed, with costs.

Freedman, J., concurred.  