#### Albert Stieglitz, as Executor of the Estate of Leopold Sinsheimer, Deceased, Plaintiff-Appellant, *v.*Julius M. Cohen, Defendant-Respondent.

(Supreme Court, Appellate Term,

December, 1910.)

Tender — In general — Time of tender.

A payment into court by defendant, in an action in the Municipal Court of the city of New York, during the progress of tlie trial, of a certain sum in satisfaction of the plaintiff’s claim is unauthorized, and in such a case it is error for the court to charge the jury that, unless they find a greater sum due the plaintiff than the amount paid into court, their verdict must be for the defendant; and a judgment for the defendant based on such a verdict will be reversed upon appeal.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, rendered in favor of the defendant after a trial before the court and a jury.

*635Simpson, Werner & Cardozo (Mayer J. Weinstein, of counsel), for appellant.

Davis & Dworsky (Harold P. Dworsky, of counsel), for respondent.

Platzek, J.

Hear the close of the trial, in open court and in the presence of the jury, the defendant’s attorney stated: “I wish to offer in tender to plaintiff $26.68 rent for four days and $1.50, approximately, for interest and $3 for the disbursements in this action, amounting to $31.18. I make that tender into court.” The plaintiff’s counsel then said: “ It is too late entirely for a tender. It is a question for the'jury to say.” Defendant’s counsel: “I pay it into court to make our tender good.” Plaintiff’s counsel: “ I ask the jury to be directed not to pay any attention to this sort of thing.” The court: “ This is simply a legal question with which the jury have nothing to do.” During the charge the defendant’s counsel said: “ I ask your Honor to charge the jury that, if the jury find that the landlord is only entitled to $26.68 and the interest thereon, then their verdict must be for the defendant, because the money has been paid into court.” The court: “That is so.” To this plaintiff’s counsel excepted. The only question which need be considered on this appeal is the effect of this so-called tender and the charge of the learned trial justice relative thereto. The only statutory provision regarding .an offer of judgment or payment of money into court, for the purpose of satisfying a plaintiff’s claim and avoiding the payment of costs, is contained in section 148 of the Municipal Court Act. That section provides that: “ The defendant may, upon the return of the summons, and before answering, file with the court a written offer to allow judgment to be taken against him for a sum of money * * *. If the plaintiff thereupon * * * files with the court a written acceptance of the offer, the court-must render judgment accordingly. If an acceptance is not filed, the offer cannot be given in evidence upon the trial * * *. Dirt a defendant may instead of such written offer, deposit the amount of his offer, if a *636sum of money, with the clerk of the court, with like effect.” As early as the case of Ellenstein v. Klee, 12 Misc. Rep. 112, Mr. Justice Daly, in speaking of the practice regarding tenders in the then district courts, said that the provisions of section 731 *et seq.*of the Code had no application to those courts and the Appellate Term has frequently so held. Levy v. Loew, 107 N. Y. Supp. 620; Public Bank v. Birnbaum, 117 id. 237. Undoubtedly a defendant can avail himself of a common-law tender, which to be sufficient requires an offer before suit of a sum of money sufficient to equal the plaintiff’s claim, payment of that sum into court, an answer setting up such tender and payment and proof thereof, if issue of that fact is tendered by thé plaintiff. There is no authority, to which out attention has been called, applicable to the Municipal Court permitting the deposit of money in that court after answering in the action; and the only statutory right the defendant has to deposit money in court to satisfy a plaintiff’s claim is before answering and, in lieu of an offer of judgment. This offer of judgment or deposit, unless accepted by the plaintiff, cannot be proven upon the trial, the reason therefor, evidently, being to keep the minds of the jury free from any prejudice that might arise in favor of the party making the offer. Even if we assume that the defendant may tender to the plaintiff, at any time, a sum equalling his claim, such tender, it has been held, does not permit a verdict other than for the plaintiff for the amount of the tender, if no other amount is in dispute. Cleveland v. Toby, 36 Misc. Rep. 320. The defendant’s offer, made at the time it was, and the judge’s charge relative thereto, was error which calls for a reversal of the judgment.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Gut and Gavegan, JJ., concur.

Judgment reversed.