In order to constitute a valid tender, it must be proved that there was a production of the money and an actual offer of it to the creditor; unless it bo shown that the latter dispensed with it by some positive act or declaration. It is not enough that he had the money in his pocket and informed his creditor that he was -ready to pay, without offering to do so ; nor that be retained it in an envelope. There must be an actual offer and pr^entation of the money, so that the creditor can take the money. (Bakeman v. Pooler, 15 Wend. 637. Dunham v. Jackson, 6 id. 22; note a, 35. Circ. T. 2d ed. 794. 1 Wait’s, L. and P. and authorities cited, 1046, 1047.)
The proof introduced upon the trial, as to the actual tender of the money, was contradictory; the defendant's witness swearing that the money was offered, and the plaintiff testifying quite positively that it was not produced or offered, Upon this conflicting evidence, the court has found adversely to the defendant, and as there is some evidence to sustain that finding, it must be considered as final and conclusive.
*229[Albany General Term, December 4, 1865.It remains to be considered whether the production of the money was dispensed with, by any act or declaration of the plaintiff. Here again is a disputed question of fact; the defendant’s witness swearing that the plaintiff refused to receive the money and directed the witness to call and pay it to his attorney, and the plaintiff testifying that he merely said that the attorney’s office was open, and it was but a step. If we take the plaintiff’s version, I do not think that the request which he made was a waiver of the production and offer of the money. He did not refuse to receive it, interpose any objection, or intimate in any way, that the presentation of the money was not required. He had but a short time previously told the defendant that he had not tendered the money, and the request made to call upon the attorney was not inconsistent with what he had demanded by this statement. The plaintiff imposed no conditions ; exacted no terms j and it is quite clear, did not dispense with ahy of the requirements essential to constitute a legal and valid tender.
We have been referred to some authorities which Would appear to hold that the production of the money Was not required, if within the power or immediate control of the party; but the cases in this state and in England are all the other way.
Whether an actual tender was made Was¿ as already stated, substantially a question of fact Upon the trial, which being controverted and sustained by sufficient evidence, is finally disposed of by the decision of the Court. As there was no error committed, the judgment must be affirmed;
Mogetoom, Pecicham and Miller, Justices.]