The defendant tendered the money to the plaintiff before the action was commenced, and after its commencement paid the money *65into court pursuant to an order therefor (Code Civ. Proc. §§ 731-733), which provided : “ It is ordered that the defendant have leave to bring into court the sum of §51.35 admitted by them to be due plaintiff by paying the same to the County Treasurer of Niagara County.
“ And it is further ordered that the plaintiff have leave at any time to take said money out of court.”
The attorneys for the plaintiff were notified of the tender.
The effect of this tender was to vest the title to the money tendered in the plaintiff. The payment into court was tantamount to a payment to him. He could take it at any time. It was not an extinguishment of his claim, but only a payment pro tanto. The defendant admitted he was indebted that much at least. If the plaintiff recovered only one-half of the sum tendered, still he could retain the whole sum, and that would be so even if the defendant obtained a verdict in his favor. (Taylor v. Brooklyn Elevated R. R. Co., 119 N. Y. 561; Beil v. Supreme Council, 42 App. Div. 168.)
The first case cited was for personal injuries. The defendant, pursuant to an order, paid into court $200 and costs, winch money was not- taken by the plaintiff. The defendant obtained a verdict at the trial. Thereafter the court ordered the money deposited to be paid to the plaintiff. This was in recognition of the proposition which is fundamental that where a tender is made and the money is' paid into court it irrevocably belongs to the plaintiff. The court say: “ The moneys belonged to the plaintiff from the moment of their deposit, by force of their payment into court under this order. * * *• The payment into the court is then deemed equivalent to an acceptance by the plaintiff of the amount tendered. The money deposited is deemed in law a payment to the plaintiff on account of the contract obligation, or of a conceded liability for the injury. * * * The Revised Statutes and the Code have extended the common-law right of tender, so as to permit a tender of moneys, or their payment into court where the tender is refused, during the pendency of an action. But the effect under the statutes, as now under the Code, has always been considered to be that the plaintiff recovers in any event the amount of the tender.”
This money belonging to the plaintiff he had a right to it at any *66time (Becker v. Boon, 61 N. Y. 317), and it follows inevitably that the defendant had no right to withdraw it. (Murray v. Bethune, 1 Wend. 191; Wilson v. Doran, 39 Hun, 88; revd. hut afid. as to this proposition, 110 N. Y. 101; 1 Rumsey Pr. [2d ed.] 758.) The rule is thus stated in a sentence in the -Encyclopaedia of Pleading and Practice (Yol. 21, p. 580) : “As money paid into court in pursuance of a tender belongs to the opposite party at all events, it follows that the party paying the money has no right to withdraw it.”
The acceptance of the money before trial is not essential to transfer ownership to the person to whom it is tendered. The liability of the defendant does not rest upon the action of the plaintiff. The defendant desired to stop interest and save costs, and consequently he offered the plaintiff a certain sum, which the latter declined to accept, and the defendant paid the money into court, which in effect was a payment to the plaintiff, and the defendant received the benefit of it. He cannot after a trial and disagreement of the jury as in this case or at any time be relieved of the effect of his tender, for he voluntarily parted with the title, receiving benefit therefor deemed adequate to him.
The illustration is made that a man may make a payment into court on the supposition that he owed the plaintiff but afterward learn he was in error, and the suggestion is that he should be relieved from his imprudent conduct. If in the case instanced the plaintiff had absolutely taken the money, I assume there would be no claim that any relief could be afforded to the defendant. In the case suggested the taking is of no consequence for he only withdrew what concededly belonged to him. Whether in the court or in his vest pocket is of no importance to the defendant. There is no greater hardship to the defendant in the supposititious case than in Taylor v. Brooklyn Elevated R. R. Co. (supra) where the defendant made his tender and then succeeded but still lost the amount tendered.
The bedrock of the principle in all these cases is that the tender transferred the title beyond any regaining by the defendant.
The order, so far as appealed from, should be reversed, with costs, and the application to withdraw the tender should be denied.
Williams, J., concurred.
Order affirmed, with ten dollars costs and disbursements.