
    Thomas Nelson, Resp’t, v. Sarah E. Loder, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    Tender—Mortgage.
    Pending foreclosure of a mortgage, the second mortgagee tendered an amount sufficient to pay the mortgage and costs, and demanded an assignment, which was refused. Thereafter he mingled the moneys with his own, and used the same. Held, that the tender was not sufficient to stop the running of interest on the first mortgage.
    Appeal from judgment in favor of plaintiff, directing that or payment of the sum of $4,050 tendered to defendant October 18, 1880, defendant be required to execute an assignment to plaintiff of her bond and mortgage.
    Pending foreclosure of a mortgage for $3,808.11 held by defendant, plaintiff, who held a junior mortgage, tendered to her the sum of $4,050, and demanded an assignment of her mortgage. She refused to execute an assignment, but offered to cancel the mortgage.
    Plaintiff deposited the money to his credit in his bank, made other deposits, and drew checks thereon without keeping the same distinct and separate from his other moneys, but claimed to be always ready and willing and prepared with money to keep .the tender good.
    Defendant claims that she is entitled to interest on said sum..
    
      A. S. & W. F. Cassedy, for app’lt; M. V. B. Travis, for resp’t-
   Barnard, P. J.

The tender made in this case was not one which was intended to discharge the lien and leave outstanding the debt secured by the lien security. It is not a case, therefore,, which falls within Kortright v. Cady, 21 N. Y., 343, or Tuthill v. Morris, 81 id., 94, or Cass v. Higenbotam, 100 id., 248. The facts in this case are that the plaintiff held a second mortgage on said estate, and the tender was made after foreclosure was instituted upon the first mortgage, and while the foreclosure action was proceeding to judgment, and was accompanied by a demand for an assignment of the security. The costs had not been ad: justed, but an amount was tendered sufficient to cover the mortgage debt a,nd costs. The plaintiff after the tender mingled the money so tendered with his own other money. He deposited it in his bank account, and it was used by him as his own. The question is whether the tender stopped the interest. We think it did not. The plaintiff had the use of his own money after the tender, and legally is chargeable with the interest upon it. He comes into a court of equity to compel the defendant Loder to assign the mortgage which he seeks to hold for all the interest due upon it, while he has received the interest on the tender since it was made. The court of appeals in Tuthill v. Morris, 81 N. Y., 94, held that when a party affirmatively asks to extinguish a lien by reason of a tender, the tender must be kept good as between debtor and creditor. When upon payment the debtor is entitled to-the possession of his property a tender need not be kept good. Cass v. Higenbotam, 100 N. Y., 248. In the present case there was, as has been stated, no wish to discharge the lien, and no injury has resulted to the plaintiff by reason of the tender. He had his money in use after the tender for his own benefit. The costs of the foreclosure were not adjusted, and are not yet, and a tender without the means of determining the amount due which should destroy a lien “ would be in the highest degree unreasonable.” Tuthill v. Morris, supra.

The judgment should be modified by giving the relief asked for, but with the interest due to the date of the assignment, -without costs of this action, and without costs of this appeal to either party.

Pratt, J., concurs.  