#### Stephen Murphy *et al. v.*The Gold and Stock Telegraph Company.

*(City Court of New York,*

*Trial Term,*

*Filed February 7, 1889.)*

*1.*Payments—Tender—Rejection of.

A party who rejects an offer or tender, upon one or more specific grounds of objection, cannot afterwards raise another whicfi. might have been obviated if it had been made at the proper time.

2. Same—When check need not be accepted.

Expressing a willingness to take a particular kind of check cannot be tortured or construed into implying a consent to take something different, particularly in the face of an avowal that no other kind would be accepted.

3. Same—To be effectual must be what.

A tender to be effectual must put the party refusing to accept in the wrong, so that whatever loss is to follow falls upon him.

4. Same—To keep tender good, what necessary.

In order to keep the tender of a check, by defendant, • which was declined by plaintiff, good, the check should have been preserved, and after-wards deposited in court, subject to plaintiff’s order.

5. Same—Object of tender before suit, what.

The object of a tender before suit brought is to stop the running of interest, and to prevent costs, and to accomplish this result, the debtor should regard the money or thing tendered as the property of the creditor, ready at all times to be surrendered to him.

6. Same—When tender not waived. “

The plaintiff waived nothing by taking the money out of court, and *124admitted nothing except that it had been deposited in proper form, leaving the question of the sufficiency of the amount to be determined as the issue in the action.

Ok December 7th, 1882, the plaintiffs, composing the firm of Murphy & Power, deposited with the defendant fifty dollars, pursuant to a then existing rule of the latter, requiring all persons renting its quotation instruments to deposit that amount to secure it against indebtedness arising from its accounts with depositors, on the settlement of which the deposit was to be returned, with interest.

On February 26th, 1886, the defendant addressed to the plaintiffs a letter, informing them, “as deposits are-no longer required from subscribers in good standing, we desire to refund you the amount of your deposit, with interest to the first proxo, Please surrender your certificate, and receive check for amount due.”

On June 3, 1886, Mr. Murphy, one of the plaintiffs, went to the defendant’s office, offered to surrender their certificate of deposit, and demanded the return of the deposit, with interest. The defendant offered him a check for $59.69, to the order of Murphy & Power, which he refused to receive unless the check was made payable to his individual order. The defendant declined to make the required alteration in the check offered, and immediately destroyed it.

On June 10, 1886,° the present action was commenced, to recover the fifty dollars, with interest. Thereafter, and on July 21, 1886, the defendant paid into court the sum of $60.12, and, by way of defense, pleads the tender made be- . fore suit brought, followed by the payment into court of the sum last mentioned, and demands judgment- in its favor. The plaintiffs afterwards took from the court the sum deposited for their benefit, and continued the prosecution of the action, claiming that the offer of the check was not a legal tender, and that the sum paid into court was insufficient in amount.

*Weekes & Foster,*for pl’ffs; *Dillon & Bwayne,*for def’t.

McAdam, Oh. J.

The defendant urges that the objection that a check is not legal tender was waived by the - plaintiffs, as it was not refused by them on that ground, and that the plaintiffs in like manner assented to the correctness of the amount offered, *qui tacet consentiré videtur,*and cites *Duffy*v. *O’Donovan*(46 N. Y., 223), to sustain the proposition.

There is hardly any need of an authority holding that a party who rejects an offer or tender upon one or more specific grounds of objection, cannot afterwards raise another which might have been obviated if it had been made at the proper time, for the rule is now elementary. The difficulty *125is to apply the principle stated to the peculiar facts of this case, which limit its application. True, Hr. Murphy did not object to the insufficiency of the amount offered, and is, in this respect, concluded from objecting now. He, however, specifically declined to take the check the defendant offered, and said he would take none unless made to his individual order, and the defendant declined to give any, except in the form offered. As Mr. Murphy was under no obligation to receive a check of any description, against his will, it is immaterial whether the form of check he suggested or that which the defendant proposed to give Mm, was more appropriate for the transaction at hand. When it was apparent that the parties could not agree upon checks as a substitute for money, the defendant must have known that it was bound to pursue the next and only other method of making a tender, which was by an offer of the money, which Mr. Murphy would doubtless have accepted. If it was determined to pay him by check only, it knew that Murphy had the right to determine whose check, and what form of check, he would take. It was optional with him, and he had the sole right of choice, without dictation. Expressing willingness to take a particular kind of check, cannot be tortured or construed into implying a consent to take something different, particularly in the face of his avowal that he would take no other kind of check. A tender, to be effectual, must put the party refusing to accept in the wrong, so that whatever loss is to follow, falls upon him. The tender attempted to be proved in this case was not of that character. It is clear, therefore, that the abortive offer made by the defendant, did not amount to a legal tender of the debt. Assuming, for the moment, that the defendant is right in claiming that Murphy, by his conduct, is to be held to have impliedly consented that the particular check, offered by the defendant, be regarded as the representative of money for the purpose of the tender, we meet with another difficulty. So considered, it became his property, theoretically, at least; and the defendant could not voluntarily destroy the instrument afterward, without discharging, at the same time, the consent that made it *“*money” for the purpose of the transaction.

This leads us to the second objection to the alleged tender, which is, that even if Murphy erred in declining to accept the check, it should, in order to keep the tender good, have been preserved, and afterwards deposited in court subject to the plaintiffs’ order. *Bull’s Head Bk.,*v. *Koehler, 1*City Ct. R., 264; *Becker*v. *Boon,*61 N. Y., 317. It was, theoretically at least, an appropriation of so much of the defendant’s money to the plaintiffs’ use. This condition of things should have continued, that the plaintiffs might have their *locus poenitentice.*The defendant, however, effectually revoked the application by destroying the check, se that matters were put back to where they were before the *126check was drawn. The identical money, or the check (as its substitute), should have been preserved and brought into court, and not mingled with other money of the debtor, or used in its business. *Roosevelt*v. *Bull’s Head*Bank, 45 Barb., 579; *Bissell*v. *Heyward,*96, U. S., at p. 587.

The object of a tender before suit brought is to stop the running of interest, and to prevent costs (5 Cow., 248; 17 John, 253; 2 id., 24; 12 id., 274), and to accomplish this result, the debtor should regard the money or thing tendered as the property of the creditor, ready at all times, to be surrendered to him. The defendant, on the contrary, treated the check tendered as its own, destroyed it at pleasure, and left the moneys in the bank on which it was drawn, subject to every other call of its business. The subsequent dedeposit in court, even if otherwise sufficient, should (in consequence of the destruction of the check) have at least been accompanied by the interest up to the time the deposit was made, for the defendant had the unrestrained use of the money up to that time (Graham’s Pr., 2d ed., 534, citing 2 B. & Adol., 705; S. C., 1 Dowl. Pr. Rep., 331). The amount paid into court was $60.12, when it should have been $60.82, being insufficient by seventy cents. The money deposited became the property of the plaintiffs, and they had the right to take it out of court. *Bull’s Head Bank*v. *Koehler,*and *Becker*v. *Boon, (supra),*even though they had been non-suited afterwards, or a verdict or judgment had passed against them (Cow. Tr. & Pr., § 1180). The plaintiffs waived nothing by taking the money out of court, and admitted nothing except that it had been deposited in proper form, leaving the question of the sufficiency of the amount to be determined as the issue in the action.

For the reasons stated, the plaintiffs are entitled to judgment, and the only point remaining to be considered is whether the amount is to be $60.82, or that amount less the $60.12 deposited, to wit: 70 cents.

The practice is to direct judgment for the whole amount of the claim, so as to preserve the plaintiff’s right to costs, and to credit the deposit on account of the judgment after it is entered. *Dakin*v. *Dunning,*7 Hill, 30. If the tender had been found sufficient, judgment would have gone for the defendant, and the plaintiffs would have taken the money tendered for their claim. *Becker*v. *Boon,*61 N. Y., 322; *Dakin*v. *Dunning (supra).*

Judgment will, therefore, be directed in favor of the plaintiffs for $60.82, and after the entry thereof, the plaintiffs must credit the defendant thereon with the sum deposited.