#### Hill *vs.*Place.

1. The deposit in a bank at which a note is payable, of sufficient money to pay it, is not a payment; nor is it such an extinguishment that the holder cannot thereafter recover from the maker the amount due on the note.

2. Such deposit is simply a tender of the amount; and if pleaded to a .suit thereafter brought, it bars the recovery of interest subsequent to the tender, and of all costs subsequent to the payment of the money into court, if the plaintiff accepts the money. If, however, he does not accept it, but goes to trial and the defendant establishes his defense of tender, it bars the recovery of all interest subsequent to the tender, and all costs, and entitles the defendant to costs.

3. But this is the only effect of a plea of tender. It does not in any event bar a recovery of the principal amount due, with interest to the day of tender.

4. To make a plea of tender good and sufficient it is necessary, not only that the money he actually brought into court, but that the answer should aver that fact.

6. In an action upon a promissory note payable at a bank, it is not necessary to aver or prove demand of payment at such bank, or protest, as against the maker.

(Before Jones, J. at special term,

April —, 1867.)

This action was brought upon a promissory note, made by the defendant, payable at the Hanover Hational Bank, in the city of Hew York.

The defense set up was that on the last - day of grace there was sufficient money deposited in the Hanover national Bank to pay the note, which money was allowed to remain there, for the purpose of paying the note, for several days. There was no allegation in the answer to the effect that the defendant, simultaneously with putting in the answer, brought the money into court, or to the effect that the money had been brought into court prior to the putting in of the answer. In point of fact the money had never been brought into court.

On the last day of grace, between 10 and 11 o’clock in the morning, the note was presented at the bank for pay*390ment, and payment demanded, which was refused. Subsequently to this demand, the money to pay the note was deposited, but no notice of this fact was given to the holder of the note, nor was the note again presented for payment at the close of banking hours.

There was proof that it is the custom to present notes for payment between ten and three o’clock, but that the maker has until three o’clock to pay the note, and it cannot be protested until after three; that according to the custom it is necessary, if a note, on a presentment made prior to three o’clock, is not paid, to present it again after three o’clock, before it can be protested.

The court directed a verdict for the plaintiff; and the defendant, on the minutes of the judge before whom the case was tried, moved for a new trial.

*William Weston,*for the motion.

*J. R. Hills,*opposed.

Jones, J.

The deposit in a bank at which a note is payable, of sufficient money to pay it, is not a payment of it; nor is it such an extinguishment that the holder cannot thereafter recover from the maker, in an action brought, the amount due on the note. Such a deposit is simply a tender of the amount, and as. such, if properly pleaded to a "suit thereafter brought, it bars the recovery of interest subsequent to the tender, and of all costs subsequent to the payment of the money into court, if the plaintiff accepts the money. If, however, the plaintiff does not accept the money, but goes to trial, then if the defendant establishes his defense of tender, such defense bars the recovery of all interest subsequent to the tender, and all costs, and entitles the defendant to costs.' But this is the only effect of a plea of tender. It does not, in *391any event, bar a recovery of the principal amount due, with interest to the day of tender. (*Wolcott*v. *Van Santvoord,*17 *John.*247. *Caldwell*v. *Cassidy,*8 *Cowen,*271. *Gra. Prac.*454-460. *Burrill’s Forms, ed. of*1840, *p.*338.)

Conceding, then, that the tender in this case was sufficiently pleadéd, still the plaintiff would be entitled to recover the amount of the note, although he. would have to pay the costs of the action.

But the tender is not sufficiently pleaded. There is no allegation in the answer that the money then was, or theretofore had been, brought into court; and in point of fact, the money never has been brought into court. To make a plea of tender good and sufficient, it'is necessary, not only that the money should be actually brought into court, but that the answer should aver that fact. *(See eases above cited.)*

It therefore follows that neither the answer, nor the proof given under it, constituted a bar to the plaintiff’s recovery of the debt, of the interest thereon, and of the costs of suit.

The defendant, however, suggests that the plaintiff cannot recover unless he has demanded payment at a place at which the note is payable, and that such demand must be made after three o’clock oh the last day of grace: Ho demand whatever is necessary to enable *the*plaintiff to maintain his action. *(Wolcott*v. *Van Santvoord,*17 *John.*247.) Consequently, in this aspect of the case, it is unnecessary to consider the effect of a demand between ten and eleven in the morning, not followed up by a demand after three.

If the tender had been sufficiently pleaded, then the question might arise whether a deposit made before three on the last day of grace, but after a demand and refusal at an earlier period of the day, would amount to a tender. As under the present pleadings, it is unnecessary to pass *392on that point, I refrain from considering, or intimating an opinion on it.

As it is wholly unnecessary, in any case whatever, tc protest a note for non-payment, as against the maker, the questions as to whether the custom proved to exist in the city of New York, that a note payable at a bank on a certain day cannot be protested until after three p. M. of the last day of grace, can be allowed to have any effect at all, and, if it has any effect, then what that effect is, do not arise for decision.

The motion for a new trial must be denied, with ten dollars costs, (a)

(a)

**The above decision was affirmed, on appeal, at a general term of the court, held in October, 1867, upon the grounds stated in the foregoing opinion.