Lieberman v. Stein , 2 A.D.2d 893 ( 1956 )

In an action on contract to recover liquidated damages, the appeal is from so much of an order as denies a motion for summary judgment dismissing the complaint. Order insofar as appealed from affirmed, with $10 costs and disbursements. The making of the demand on the surety company on February 21, 1955 and appellant’s failure to pay the money into court until on or about April 4, 1955 are conceded. The tender and the payment into court constitute an affirmative defense which should have been pleaded to render evidence thereof admissible (Civ. Prac. Act, § 174-a). Nolan, P. J., Beldoek, Murphy, Ughetta and Hallinan, JJ., concur.