—Tender after suit was confined to “ actions at law” (2 Rev. Stats., 553). In those actions costs were fixed, and not discretionary. They were adjusted also to each successive service in the cause. There'was no percentage applicable in gross to the whole. Hence the Code, even in such actions, makes no provision for a tender as distinguished from a confession. It permits the defendant to serve an offer to “ allow judgment” for a specific sum, with costs. On such a judgment, the percentage may be added, and the costs thus complete. But no provision is made for a percentage without a judgment. Whether, therefore, a tender can now be made after suit, except in the form of an offer to allow judgment, may at least be doubted. It certainly cannot, as it seems to me, in a foreclosure suit. Such suits, it is well known, were not “ actions at law,” as understood in the Revised Statutes. They were suits in equity, and subject to all the equitable jurisdiction of the court. They are so still. In such suits, costs, under the Code, “ may be allowed or not, in the discretion of the court” (§ 306).
The defendant has mistaken the practice. He should have offered to pay the interest accrued, and upon its refusal, and a reasonable excuse for the seeming want of precise punctuality, have obtained, as he might, an order to "stay all proceedings, till a further default, if any should occur.
Order accordingly.