The plaintiff, as landlord, in February, 1910, instituted, in • the Ninth District Municipal Court of the city of New York, dispossess proceedings against one Frank W. Terwilliger, as tenant. The defendant in this action was the clerk of that court. The proceeding was instituted on the ground of the non-payment of: rent amounting to $4,583.33. The tenant interposed an answer to the petition, admitting that $850 •— the rent for the month of February — wasi due and unpaid, and alleging he theretofore had been and then was ready to pay it. As to the balance claimed the answer set up. a defense and counterclaim. Upon the issue thus ¡raised the parties went to trial, where the tenant tendered $850 to the landlord, who refused to ¡accept the same on the ground that he was entitled to $4,583.33. The landlord having refused to accept the $850, it was thereupon delivered to the clerk of the court, — the present defendant." The issues raised by the petition and answer were determined in favor of the landlord and an order was made ¿warding to it possession of the premises. The tenant then demanded from the defendant the $850 delivered to him during the progress of the trial and the landlord also made a similar demand. The defendant refused to deliver it *393to either and this action was brought by the landlord to recover the same, and it had judgment for that sum from which defendant appeals.
Prior to the commencement of this action the tenant instituted a mandamus proceeding against defendant, as clerk of the Municipal Court, to compel him to turn over the money and the landlord was permitted to intervene therein. An order was made directing that the writ issue, but on appeal it was held by a divided court that mandamus was not the proper remedy to compel payment to either party and the order was reversed and the motion for the writ denied. (People ex rel. Terwilliger v. Chamberlain, 140 App. Div. 503.) The court was unanimous in holding that there is no provision of law which authorizes the payment of the money into court, for which reason three of the justices sitting in the case reached the conclusion that the defendant received it not in an official capacity, but as stakeholder, against whom mandamus would not lie. Two of the justices, however, were of the opinion that notwithstanding the absence of statutory authority, the payment should be given the same effect as though such authority existed, since all of the parties interested at the time the payment was made had assumed such was the fact.
The tenant is not a party to this action, and defendant has not, as he doubtless might have done, brought him in by way of interpleader, but notwithstanding that fact the real question to be determined is whether his right to the money is superior to that of the landlord. The defendant has no personal interest in the fund, because it belongs either to the landlord or tenant, to one of whom, but not both, he is liable. Had the payment into court of the $850 been authorized by law, the title to the money would have, at once passed from the tenant to the landlord. (Mann v. Sprout, 185 N. Y. 109; Becker v. Boon, 61 id. 317; Wilson v. Doran, 110 id. 101.) This follows for the reason, as stated in Mann v. Sprout {supra), that “When a debt is due, a tender of the entire amount, with no condition attached, and the payment thereof into court pursuant to its order, even if not accepted, is an absolute transfer of the money to the creditor. When the sum tendered is less than the amount due, it is a conclusive *394admission of the indebtedness to the extent of the tender, regardless of the final result of the action, and not only does the party paying it into court lose all right to it, but the court itself has no power to make an order in the same action which, in effect, retransfers the title.”
In the present case, notwithstanding the fact that there was no provision, of law. authorizing the payment into court, all of the parties. assumed that there was, and the tenant, acting upon that assumption, delivered the sum in question to the clerk. By so doing he obtained the same advantage that he would have had if the clerk, as such, had been authorized to receive it. By making this payment the tenant admitted that $850 was justly due, and it was received by the clerk of the ¡court in satisfaction pro tanto of the amount of rent claimed by the landlord. This payment having been made, the landlord was required. to prove, in order to obtain a final order dispossessing the tenant, not that $850 was due, but something additional. The. landlord having made such proof, it'was too late for the tenant to reclaim the money paid to the defendant. . By reason of the acts of the landlord and tenant the latter is estopped from asserting that it belongs to him.
In Sentenis v. Ladew (140 N. Y. 463) it was said: “A party may waive a rule of law or a statute, or even a constitutional provision enacted for his benefit or protection, where it is' exclusively a matter of private right, and' no considerations of public policy or morals are involved, and having once done so, he cannot subsequently invoke its protection. * * * It would be an intolerable abuse of the process of the court if the plaintiff could be permitted to select his tribunal and summon his adversary before it, and when defeated in the cause be heard to say that the action was not cognizable by the court, and that the judgment which it had rendered was a nullity.”
In Matter of New York, L. & W. R. R. Co. (98 N. Y. 441) it was said: “Generally all stipulations made by parties for the government of their conduct, or the control of their rights in the trial of a cause, or the conduct of a litigation, are enforced by the courts.”
The principles laid down by these authorities are applicable, *395as it seems to me, to the case before us. The defendant, as already said, has no interest in the fund. He must pay it-to either the tenant or the landlord. The tenant having taken advantage of what he believed the law gave him the right to do, by paying what he conceded into court, and all of the parties having acted upon the assumption that he had the right to make such payment, ought net to be thereafter permitted to change his position.
The judgment and order appealed from, therefore, should be affirmed, with costs.
Ingraham, P. J., and Dowling, J., concurred; Clarke and Scott, JJ., dissented.