After the judgment obtained by the plaintiff on the. trial hacl been affirmed by the Court of Appeals the defendant applied to and obtained from the Special Term, upon the ground, among others, of newly-discovered evidence, a new trial upon condition, however, that within a time specified he pay to the plaintiff all the costs (except an extra allowance) and disbursements then taxable, and also deliver to him an undertaking in the sum of $50,000, conditioned for the payment of any judgment the, plaintiff might thereafter recover. The defendant endeavored to comply with the conditions thus •imposed by offering to pay such costs, and disbursements, and to. deliver. the undertaking, both of which the plaintiff declined to-accept on the ground that he proposed to appeal from the order-granting the new trial. The plaintiff thereafter did appeal and the-order was subsequently affirmed by this court. After such, affirmance the plaintiff sought to induce the defendant to pay the costs, and disbursements and give the undertaking, but he declined to do so upon the ground that he had complied with the order in that respect by making the offer above referred to. A motion was then made by the plaintiff to vacate the order granting the new trial unless the defendant complied with the conditions as to the payment of costs and the giving of the undertaking, and after a hearing an order was made to that effect from which the defendant appealed.
We think the order was right. " The court in its discretion imposed, as a condition of the defendant’s having a new trial, the payment to the plaintiff of the costs and disbursements, and also the giving of an undertaking to satisfy any judgment that the plaintiff might thereafter obtain. This condition was not satisfied by the offer made by the defendant. An offer to pay an amount due may discharge a lien, but it does not pay a debt or discharge an obligation *217any more than a promise to do so does. The defendant’s offer did not satisfy and discharge the obligation imposed upon him by the order. Hoth'ing but the actual payment of the costs and the delivery of the undertaking could do that. The plaintiff desired to review by appeal the order granting a new trial, and this he had a right to-do, and he could not, without prejudice to his rights on the appeal,, accept the costs and the undertaking at the time they were offered. He could not accept a benefit under the order and at the same time-appeal from it. The better practice undoubtedly would have been for-the plaintiff to have obtained a stay pending the appeal, but-there is no doubt that the Special Term had the power, in the exercise of its discretion, to excuse his neglect in this respect, and this is-what it in effect did by the order appealed from.
We are of the opinion, however, that the defendant should be made good for any and all disbursements which may have been ■incurred by him by reason of the plaintiff’s refusal to accept the-costs and undertaking when offered ; and for that reason the order-appealed from should be modified to the extent of permitting the-Special Term to determine that fact, and such disbursements, if any,, should be deducted from the costs directed to be paid to the plaintiff, and as thus modified the order should be affirmed, without costs.
Van Brunt, P. J., and Rumsey, J., concurred; Ingraham and. Barrett, JJ., dissented.