The tender made in this case was not one which was intended to discharge the lien and leave outstanding the debt secured by the lien security. It is not a case, therefore,, which falls within Kortright v. Cady, 21 N. Y., 343, or Tuthill v. Morris, 81 id., 94, or Cass v. Higenbotam, 100 id., 248. The facts in this case are that the plaintiff held a second mortgage on said estate, and the tender was made after foreclosure was instituted upon the first mortgage, and while the foreclosure action was proceeding to judgment, and was accompanied by a demand for an assignment of the security. The costs had not been ad: justed, but an amount was tendered sufficient to cover the mortgage debt a,nd costs. The plaintiff after the tender mingled the money so tendered with his own other money. He deposited it in his bank account, and it was used by him as his own. The question is whether the tender stopped the interest. We think it did not. The plaintiff had the use of his own money after the tender, and legally is chargeable with the interest upon it. He comes into a court of equity to compel the defendant Loder to assign the mortgage which he seeks to hold for all the interest due upon it, while he has received the interest on the tender since it was made. The court of appeals in Tuthill v. Morris, 81 N. Y., 94, held that when a party affirmatively asks to extinguish a lien by reason of a tender, the tender must be kept good as between debtor and creditor. When upon payment the debtor is entitled to-the possession of his property a tender need not be kept good. Cass v. Higenbotam, 100 N. Y., 248. In the present case there was, as has been stated, no wish to discharge the lien, and no injury has resulted to the plaintiff by reason of the tender. He had his money in use after the tender for his own benefit. The costs of the foreclosure were not adjusted, and are not yet, and a tender without the means of determining the amount due which should destroy a lien “ would be in the highest degree unreasonable.” Tuthill v. Morris, supra.
The judgment should be modified by giving the relief asked for, but with the interest due to the date of the assignment, -without costs of this action, and without costs of this appeal to either party.
Pratt, J., concurs.