Mann v. Sprout

McLennan, P. J.:

The question presented by this appeal is whether or not the court has power to permit an amendment of an answer which shall be effectual where the defendant has paid into court an amount tendered to the plaintiff under a mistake of fact. The question as to whether or not the court improperly exercised its discretion in permitting the defendant to serve an amended answer in this case is not involved, as that part of the order is not appealed from. The question is: Has the court power to relieve a defendant from the effect of a tender which, after the commencement of the action, is, by order, paid into court ?

A tender is an admission by a defendant that he is indebted to the plaintiff in a sum at least equal to the amount thereof. If accepted it ends the litigation. If not accepted the rights of the parties remain unchanged. If such tender is paid into court after action brought, for the purpose of keeping it good, the plaintiff may accept it at any time. If he does not accept it, the litigation proceeds exactly as if such tender had not been made, and it only affects the amount of costs which the parties are entitled to recover, except that in any event the plaintiff is entitled to the amount of such tender. Under those circumstances it has been held that the amount so paid into court becomes the property of the plaintiff and that the title passes from the defendant to the plaintiff. (Becker v. Boon, 61 N. Y. 322; Beil v. Supreme Council, 42 App. Div. 170 ; Wilson v. Doran, 39 Hun, 88.)

In Becker v. Boon (supra) the court said: “ 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.”

The foregoing and similar expressions of the courts, we think, must have reference to the condition of the pleadings or issues at the time the payment into court was made.

In Taylor v. Brooklyn Elevated R. R. Co. (119 N. Y. 561) it was held, where such a tender was paid into court, that although the plaintiff failed to prove a cause of action he was entitled to the amount of the tender. Such holding was strictly in accordance with the pleadings in that case. The defendant admitted that Taylor was entitled in any event to recover' the amount paid into court and the court by its decision simply gave effect to such unqualified admission. That is not the attitude of the parties in the case at bar. By his original answer the defendant admitted an indebtedness to the plaintiff for a certain amount. In order to avoid costs he tendered the amount, and after suit brought, in order to make such tender effectual, he paid the same into court. As the pleadings then stood the plaintiff was entitled to recover the amount of the tender. Then the pleadings were changed, the issues to be tried were changed, the admission in the answer that the defendant was indebted to the plaintiff was eliminated, and if seems cpiite clear that the payment into court, which was only made for the purpose of making such admission effectual, should also be eliminated. Suppose that A demands payment from B of a promissory note for $500 made by him, claiming that the whole amount is due and unpaid. B, honestly believing that he has already paid only $100 upon the note, tenders to A the balance, which he refuses to accept and brings an action to recover the face of the note. B in his answer alleges the payment of $100 and pays the balance, $400, into court, which A refuses to take or accept. B thereafter discovers that he has paid the full amount of the note; that he has it in his possession marked paid and satisfied by A. Is B without remedy ? May not he be allowed to amend his answer and be relieved from his act of payment into court? We think the power of the court is sufficiently broad to prevént an injustice of that character, and that the fact that payment into court has been made under such circumstances does not restrain the court in that regard.

In the case at bar, it being practically conceded that the court properly exercised its discretion in permitting the defendant to amend his answer by withdrawing his admission of any indebtedness to the plaintiff and by setting up a counterclaim and demanding an affirmative judgment, we think the court had the power and was justified in permitting the defendant to withdraw the money paid by him into court, which only was made for the purpose of making effectual his admission of indebtedness, which was eliminated by the amended answer.

It follows that the order appealed from should be affirmed, with costs.

Hiscook and Stover, JJ., concurred ; Spring, J., dissented in an opinion, in which Williams, J., concurred.