
    James P. Foster, Resp’t., v. Morris Mayer, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 20, 1892.)
    
    Tender—Monet deposited in court belongs to dependant. °
    Moneys deposited in court in an action to cancel mortgages on the ground that the amount due had been tendered, in which action an injunction to restrain foreclosure has been granted on condition of such deposit, belongs to the defendant, and he has a right to receive the same.
    Appeal from an order denying motion to direct the chamberlain of the city of New York to pay to the defendant the amount deposited as a tender.
    
      Sol Kohn, for app’lt; E. Schenck, for resp’t.
   Van Brunt, P. J.

This action was brought for the cancellation of record of two mortgages upon premises purchased by the plaintiff, the plaintiff claiming that he had tendered the amount due upon the mortgages, and hence the liens created by said mortgages were discharged.

Shortly after the commencement of this action the defendant 'began an action in the court of common pleas for the foreclosure of these mortgages. The defense interposed was usury, and the cause having been set down for trial, the plaintiff herein applied in this action for an order to restrain the prosecution of the foreclosure suit until the determination of this action; which motion was granted, upon condition that the plaintiff should deposit with the clerk of the court the amount admitted by him to be due to the defendant upon the mortgages, with interest The plaintiff thereupon made such deposit, and the defendant subsequently moved for a direction that the chamberlain pay over to him the money so deposited. This motion being denied, this appeal was taken from the order thereupon entered.

The right of the defendant to receive this money at any time seems to be apparent, as it is a sum admitted to be due from the plaintiff to the defendant, and was not deposited to abide the event of the action. The object of the deposit was to place within the control of the defendant the amount admitted to be due, and was made in order that equitable relief might be granted. It seems to be needless to cite authorities to show that a deposit being made under such circumstances, if the defendant desires to avail himself of the deposit, he has a right to do so at any time. But the case of Nelson v. Loder, 132 N. Y. 291; 43 St. Rep., 946. expressly disposes of this question. The court sav: “If a debtor wishes to extinguish his liability for subsequently accruing interest, or demands some affirmative relief he cannot retain the money subject to his own use, but must devote it to the specific purpose of paying the debt, and put it within the power of the creditor to receive it at any time.”

In the case at bar, as has already been stated, the equitable relief demanded was the cancellation of the mortgages and an injunction restraining the prosecution of the foreclosure action.

It would ‘seem, therefore, beyond question that the defendant, was entitled to this money, admitted to be due upon the mortgages, and therefore admitted to belong to him, at any time he-chose to take it.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

O’Brien, J., concurs.  