Keeler v. Van Wie
New York Supreme Court
The defendant borrowed about the sum .of $100 of the plaintiff. The money not having been paid this action was commenced. After the papers were served the defendant, without informing him that suit was commenced, paid to the book-keeper of the plaintiff the amount due and took his receipt therefor. The plaintiff, upon being apprised of the fact, notified the defendant that he would not receive the money unless the costs of the suit were paid.
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The defendant borrowed about the sum .of $100 of the plaintiff. The money not having been paid this action was commenced. After the papers were served the defendant, without informing him that suit was commenced, paid to the book-keeper of the plaintiff the amount due and took his receipt therefor. The plaintiff, upon being apprised of the fact, notified the defendant that he would not receive the money unless the costs of the suit were paid. This demand was not complied with by defendant, and the pleadings present the question of payment.
1Opinion of the CourtWestbrook, J.
If the plaintiff had adhered to the resolution of not accepting the money, I do not see how a recovery *98cduld have been prevented. After suit commenced -the plaintiff was- entitled to his costs and a payment to his clerk, without a disclosure of the existence of -a suit, would not be a valid one. Such payment, however, having been made to the clerk' of the plaintiff the latter had the option to accept . it or not. If he did accept it and take the money from the person to whom it was paid and appropriate it to his own use, he thereby ratified the manner of the payment. This the plaintiff in…
2Cases cited1 opinion
- Toll v. HillerNew York Court of Chancery · 1844
3Cited by2 opinions
- Weeks v. StarrAppellate Terms of the Supreme Court of New York · 1911
- Rice v. ChildsNew York Supreme Court · 1882