(18 Misc. Rep. 225.)

#### SCHMITT et al. v. HOFFMANN et al.

(Supreme Court, Appellate Term, First Department.

October 29, 1896.)

Payment—Accepting Note—Tender.

Where a creditor accepts the debtor’s note, payable at a particular place, and retains it until maturity, he assumes the duty of presenting it for payment; and it is equivalent to a tender for the debtor to have the money ready at the place of payment on maturity of the note.

Appeal from Fourth district court.

Action by Conrad R. Schmitt and others against Joseph A. Hoffmann and others to recover for professional services. There was a judgment in favor of plaintiffs, and defendants appeal. Reversed.

Argued before DALY, P. J., and McADAM and BISOHOFF, JJ.

George A. Baker, for appellants.

George Hass, for respondents.

McADAM, J.

The action is by the plaintiffs to recover for professional services rendered for the defendants in examining a title to certain real estate. The bill was $128.12, on account of which the defendants paid $60, and for the balance remaining unpaid, $68.12, gave a note made by the defendant Joseph A. Hoffmann, and indorsed by the defendant Emma Hoffmann, ■ dated May 5, 1896, and payable *478one month after date at No. 39 Avenue A. The plaintiffs accepted the note, and on the 10th of July, 1896, brought this action to recover the balance due on their bill. The note was not presented for payment, but a letter was written to the defendant Joseph A. Hoffmann, calling his attention to the note. Upon the trial the plaintiffs claimed the right to surrender the note, and recover the balance due upon their bill. The justice decided that they had this right, and rendered judgment in favor of the plaintiffs for the balance due, $68.12, with $3.06 interest, making $71.18, with costs. The plaintiffs seek to sustain this ruling upon the familiar rule that a note does not operate as a discharge of a precedent debt in the absence of an express agreement to that effect, and that the only result is to extend the time of payment (Fitch v. McDowell, 80 Hun, 207, 30 N. Y. Supp. 31, affirmed 145 N. Y. 498, 40 N. E. 205); that the claim survived the taking of the note, as the original consideration remained; that the note was nothing but a written promise to pay the indebtedness; that, though the enforcement of the collection .of the original claim was postponed, the plaintiffs, after the maturity of the note, had a right to surrender it, and sue upon the original cause of action (Iron Co. v. Walker, 76 N. Y. 521).

The propositions advanced by the plaintiffs are undoubtedly correct, but do not reach the point involved here. Allowing that the plaintiffs, as they received no new consideration for talcing the note, might have returned it to the defendants at any time before its dishonor, and brought action on the original consideration (Graham v. Negus, 55 Hun, 440, 8 N. Y. Supp. 679; Cary v. White, 52 N. Y. 138; Halliday v. Hart, 30 N. Y. 474; Parmelee v. Thompson, 45 N. Y. 58; Bank v. Franklin, 55 N. Y. 235), they did not elect to pursue that course, but retained the note as an available negotiable security, and the defendants had a right to assume that it would be presented as such securities are, in due course. The plaintiffs having accepted the note, though not- technically and unconditionally in payment, assumed the duty of presenting it at maturity. Insurance Co. v. Allen, 11 Mich. 501; Carroll v. Sweet, 128 N. Y. 19, 27 N. E. 763; s. c. on subsequent trial, 9 Misc. Rep. 382, 30 N. Y. Supp. 204; Cow. Treat. § 470. The note in this instance was payable at a particular place, namely, 39 Avenue A, and the uncontradicted evidence shows that at its maturity the money was at that place, sealed in an envelope, and set aside expressly for its payment when presented. While presentment at the place named was not necessary to give a right of recovery, it relieved the parties to the note from damages if they were ready at the time and place named to pay it, and there was no one to receive payment. Such readiness is equivalent to a tender before suit brought, and an answer pleading that fact and payment of the money due into court will be a bar to the recovery of interest and costs, but not to the cause of action. Hills v. Place, 48 N. Y. 520; Riley v. Cheesman, 75 Hun, 387, 27 N. Y. Supp. 453. Tender is an attempted performance, frustrated by the act of the party to whom it is offered. ' Though it does not discharge the debt, it will, if kept good, prevent the creditor from recovering interest or costs. In other words, “if the plea is sustained, the cred*479itor gets nothing but what was originally tendered him, and the debtor gets judgment for his costs, so that he is placed, as nearly as can be, in as good a position as he held at the time of the tender.” Clarke, Cont. (Hornbook Ed.) 639, 640. Tender, to be a valid performance to this extent, must observe exactly any special terms which the contract may contain as to time, place, and mode of payment. Id. The rule is that, “if a contract fixes the place, the tender must be made at that place, and the party to whom tender is to be made must attend there for the "purpose of receiving the money.” 25 Am. & Eng. Enc. Law, 920; 7 Wait, Act. & Def. 582. “In cases of contract, a tender must be made at the place designated in the contract, and will not be valid at any other place.” 2 Wait, Prac. p. 581. In Locklin v. Moore, 57 N. Y., at page 362, the court said: “The only benefit the defendant could get from the specification of payment at a particular place is that, if he was ready there to pay, and kept ready, he could set that fact up in his answer, and then pay the money into court, and allege such payment in his answer, and thus relieve himself from all liability for interest and costs.” The defendants, upon being sued, kept the tender good by paying into court not only the amount of the note, but all interest up to the time of suit brought, and relied upon the plea of tender above suggested to protect themselves from interest and costs; but, under the erroneous ruling of the court below, it failed to effect this result. The tender having been kept good by deposit in court, such payment completely discharged whatever cause of action the plaintiffs had, and, as the money deposited became absolutely the money of the plaintiffs as soon as deposited, the defendants were entitled to judgment in their favor. Dakin v. Danning, 7 Hill, 30; Becker v. Boon, 61 N. Y. 317; Taylor v. Railroad Co., 119 N. Y. 561, 23 N. E. 1106; Cow. Treat. § 1152; Kelly v. West, 36 N. Y. Super. Ct. 304; Wright v. John A. Robinson *&*Co., 84 Hun, 172, 32 N. Y. Supp. 463; Pars. Cont. (6th Ed.) pp. 638, 639.

The judgment must be reversed, and, as a new trial would be of no possible avail to the plaintiffs, there must be judgment absolute in favor of the defendants, with costs. All concur.