[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 319 The plaintiff, in his complaint, among other things, claimed that defendants were indebted to him upon an award of arbitrators in the sum of fifty-two dollars and forty cents. The defendants, in their answer, set up the same award, and allege that on or about the 5th day of November, 1869, they tendered to plaintiff fifty-two dollars and forty cents, which he refused, solely upon the ground that he was entitled to interest thereon for one year, and they further alleged that, from the making and delivery of the award, they had, at all times, been ready and willing to pay the sum awarded, and to comply with the award. There were no other allegations as to keeping the tender and readiness to pay the same, and no allegation or notice that the defendants had paid the same into court.
Upon the trial it was proved that the tender was made in a check for the amount upon a firm of bankers, payable to plaintiff's order, and that the only objection made by the plaintiff was the one set up in the answer. When defendants offered the check in evidence, the plaintiff objected to the same on the ground that it was immaterial and incompetent under the answer; that there was no legal tender set up in the answer. The referee overruled the objection, and received and marked the check as an exhibit. The plaintiff requested *Page 321 the referee to find and decide that the answer of tender was without notice that the money was brought into court, and that no proof of tender could be given under it. The referee refused so to find or decide, and the plaintiff excepted. The referee found, as facts, that the check was tendered, and that plaintiff was informed that he could have it at any time; that this suit was commenced shortly afterward, when the check was delivered to defendants' attorneys; that the check was not paid into court when defendants' answer was served, nor the money therefor, but that on the trial of the action it was produced and delivered to the referee, in whose possession it remained when his report was made; and he found and decided, as matter of law, that the fact that the tender was not paid into court at the time the answer was served was a mere irregularity which plaintiff waived by receiving the answer without objection, and he ordered judgment in favor of the defendants. To these conclusions of law the plaintiff excepted. The judgment entered upon the report of the referee contained a clause that the plaintiff was entitled to receive and have delivery of the check referred to in the answer and in the referee's report.
These are all the facts to which, upon this appeal, it is important to call attention upon the question of the tender, and I am of opinion that the referee erred in reference thereto. In order to make the tender effectual for any purpose, it was the duty of the defendants to pay the money into court, and allege that fact in their answer. (Graham's Practice, 249, 541; Tidd's Practice, 669; Brown v. Ferguson, 2 Denio, 196; Sheriden v.Smith, 2 Hill, 538; Simpson v. French, 25 How. Pr., 464.) This not having been done, all the authorities hold that the tender was a nullity. If we assume that this check could have been paid into court in the place of money, it was not done. Payment to the referee was not payment into court. He was not the court for the purpose of receiving the money tendered, but simply for the trial and decision of the action. Payment to an entire *Page 322 stranger, or the retention of the check by the defendants, would have been just as effectual. It does not appear, and was not found by the referee, that the check was delivered to him for the plaintiff. So far as appears it was delivered to him simply as proof in the action.
The object of payment into court is to place the money tendered where plaintiff will be sure to get it. It then becomes the plaintiff's money, and the defendants cannot dispute his right to it. If the tender be established, judgment goes against the plaintiff, and he takes the money tendered for his claim, and the defendants recover costs of the action. But what is the condition of the plaintiff here? He has been defeated in the action because the tender was made, and yet he has no means to enforce the recovery of the check in this action. The provision in the judgment that he shall receive the check cannot be enforced in case the referee has parted with it, or is unwilling to deliver it to the plaintiff, and before delivery to the plaintiff the drawers may withdraw their funds from the bankers, and the check may thus become entirely worthless.
It is said that the plaintiff waived the payment of the money into court by going to trial upon the answer. How did he do this? The answer contained another defence besides tender, and hence the plaintiff was bound to receive the answer. He could not return it, nor treat it as a nullity. The answer of tender did not contain facts sufficient to constitute a defence, and of this objection plaintiff had the right to avail himself upon the trial, and such an objection is never, under our present system of practice, waived by going to trial.
The case of Sheriden v. Smith (supra), is cited as authority to sustain the claim of waiver. In that case there was a plea of payment and of tender, but no allegation of payment into court, and the plaintiff filed a replication to the plea of tender, thus taking issue thereon. Judge NELSON says, that by this act on his part the plaintiff waived the defect in the plea and payment of money into court, and he held under *Page 323 such a state of things that payment of money into court at the trial was sufficient. But in this case the plaintiff did nothing to recognize the validity of the answer of tender. He did no act upon which a waiver could be predicated. He objected to the sufficiency of the tender at the first opportunity when he was legally called upon to do so, and there is the further difference here that the tender was not paid into court. Hence, I am of opinion that the case of Sheriden v. Smith is not an authority for defendants' claim in this case.
Without, therefore, examining other alleged errors of the referee, I am of opinion that his judgment was properly reversed, and that the order of General Term should be affirmed, and judgment absolute ordered against the defendants, with costs.