Cagliostro v. Corporale , 26 Misc. 818 ( 1899 )

Freedman, P. J.

The. amount claimed by the plaintiff herein was the sum of $50 for accrued rent. Upon the return day of the summons the parties appeared in person and by their respective attorneys. The defendant stated that he called upon the plaintiff and offered to pay him the $50 claimed by him, and that the plaintiff refused to accept the money, and told the defendant to see his attorney; that he (defendant) called upon the plaintiff’s attorney and offered him the money; that the said attorney wanted $7 costs, and that at this time, he, the defendant, had pot been served with a summons in the case.

These facts were not disputed, and the plaintiff specifically admitted that the offer of payment to him was made before suit was brought. It was also admitted the money was then paid into court to satisfy the plaintiff’s claim. The court, upon these statements and admissions, thereupon dismissed the action, without costs and without objection or exception thereto by plaintiff.

The case differs materially from Ellenstein v. Klee, 12 Mise. Rep. 112, and from the case of Braumen v. Vanderpool, recently decided by this court. In the case at bar there was a clear unconditional tender made, and a refusal to accept, before suit brought, payment of the money into the coprt, and a dismissal of the complaint, without objection or exception taken. The record is, therefore, conclusive in favor of the correctness of the judgment rendered.

MacLean and Leventritt, JJ., concur.

Judgment affirmed, with costs.