The judgment appealed from rests either upon a complete misconception of what was decided by this court in People ex rel. Terwilliger v. Chamberlain (140 App. Div. 503), or upon disregard of that decision. We held in that case that inasmuch as there was no provision of law authorizing the payment into court at the time that the payment to defendant was made, he was under no obligation to receive the money, and in receiving it acted outside of any duty imposed upon him by law. Hence it was considered that he did not receive it and does not hold it in his official capacity as elerk, but merely as a stakeholder selected by Terwilliger, who might have selected any other private individual as stakeholder in order to keep his tender good. Unless, therefore, that decision is to be expressly overruled, we must start our consideration of this appeal with the assumption that the payment of $850 by Terwilliger to the defendant was not a payment into court. It did not, therefore, as I understand the rule applied by the Trial Term, operate to transfer the title to the money to the plaintiff. The rule referred to is thus stated by the Court of Appeals: “ 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 admission of the indebtedness to the extent of the tender, regardless of the final result *396of 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.” (Mann v. Sprout, 185 N. Y. 109, 111.) No one disputes the accuracy of this rule, but it is clearly applicable only in actions' and proceedings having for their purpose the recovery of money. The summary proceedings, in the course of which Terwilliger made the payment, had for their object not the recovery of money, but the recovery of possession of real property; no money judgment could be entered therein, and the amount of rent due could not be in issue because the landlord was entitled to a warrant if any rent at all was due, irrespective of the amount. The clear and evident purpose of tendering the $850 to the landlord was to induce a discontinuance of the proceedings, and it was evidently upon condition that he would do so that the tenant made the tender: The landlord at -that time refused to accept the money, and insisted upon his right to a warrant in summary proceedings. ■ The condition upon which the tender was made was never f ulfilled. There was neither acceptance by the landlord, nor" acceptance by the court in behalf of the landlord, and acceptance in one form or the other is essential to-pass title to the creditor. The rule regarding payment to a third party, and which I deem to be applicable to this case, is thus stated in Mann v. Sprout (supra, 112): “Deposit in a bank, or with a third party, without the order of the court, does not prevent a withdrawal if there has been no acceptance, but the- action of the court in a suit pending before it, whereby at the request of one party it takes money into its possession for the benefit of the other, has the same effect as actual acceptance, and ipso facto vests the" title in him.” It thus -clearly appears that what operates to transfer title to the money to the plaintiff (apart from actual acceptance by him) is its payment into court. In People ex rel. Terwilliger v. Chamberlain (supra) all of the justices were agreed that there was no authority of law for a payment into court in the summary proceedings. Consequently the money was not paid into court but to a third person who took it unofficially. The title to the money did not, therefore, within the rule of Mann v. Sprout (supra), pass to *397the landlord, and if it did not he cannot recover it from the stakeholder. It may well be that in an action between the present plaintiff and 'Terwilliger the - payment to defendant might he treated as an -absolute admission by Terwilliger that he then owed his landlord $850 as rent. But this is not the question here. Plaintiff cannot recover from the defendant because Terwilliger owes him money. It can only recover upon the theory that the absolute title to the money passed to it by the deposit with defendant. This is not the effect, as I understand it of the deposit under the circumstances.
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Clarke, J., concurred.
Judgment and order affirmed, with costs.