Lafayette Trust Company, Respondent, v. Edward G. Vail, Jr., Appellant

Lafayette Trust Company, Respondent, v. Edward G. Vail, Jr., Appellant. Second Department, November 24, 1911. Bills and notes — promissory note — tender. Where in an action on a note defendant shows that he made a tender of the amount due before suit and upon his offer to-showthathe deposited the money tendered in a bank and so kept the tender good, plaintiff’s counsel states that there is no dispute on that branch of the case, he cannot contend on appeal that the tender was not kept good, and a judgment in plaintiff’s favor will be reversed. Appeal by the defendant, Edward G-. Vail, Jr., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of May, 1911, after a trial without a jury. Charles W. Church, Jr., for the appellant. J. Elmer Melick [Frank M. Patterson with him on the brief], for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: The plaintiff has recovered a judgment on a promissory note held by it against the defendant. The defendant’s liability on the note is riot disputed, but his defense is based upon a legal tender. The evidence clearly established that on the 10th day of February, 1909, the defendant had a conversation over the telephone, with the plaintiff’s representative in the course of which he was told to bring cash to the banking house of the plaintiff to pay the note; that in accordance with such conversation the defendant went at once to the plaintiff’s bank with more than enough money to pay the note; that he laid the money on á table in front of the plaintiff’s representative and offered it in payment, but that the note could not be found, and that he thereupon took, the money away and redeposited it. He endeavored to show the nature of the redeposit, presumably for the purpose of proving that he kept the-tender good, but was prohibited. from doing so on the assurance of plaintiff’s counsel that there would be no dispute on that branch of the case, and the assurance of the court that if any. question should be raised the plaintiff would be allowed to go into the matter in detail. Ño question was afterwards raised as to the sufficiency of the tender; nevertheless the principal point presented by the respondent in its brief is that there was no proof that the defendant’s tender was kept good. It further appears that the defendant had deposited- in the court below the amount of the debt and interest to February 10, 1909; and this, the respondent claims, is insufficient as not including subsequent interest and costs. That question need not be. determined on this appeal, but as the proof upon the trial was equivalent to the establishment of a legal tender of the money due on February 10, 1909, kept good by the defendant until the time of the trial or at least until the time of the deposit in court, the defense ®f tender was conclusively established, and the judgment must be reversed. Jenks, P. J., Burr, Carr and Rich, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.