Baxter agt. The Second Avenue Railroad Company. for any reason suggested in the request to charge, the plaintiff was bound to await the passage of the defendant's car. It was snow ice, which at most was never smooth, and under the facts of the case no jury would be justified in a verdict against the plaintiff on any such ground. The proposition of the appellant's counsel, in its scope and meaning, comes to this: that a foot passenger has no right upon a public street, as against a railroad corporation. And I regret to say that such seems to be practically the belief of drivers of most public conveyances, and of many private vehicles. There is often a reckless disregard of human limbs and life, and pedestrians are compelled, at the peril of broken bones or death itself, to keep out of the way. The right to travel upon a street or highway, is common to all. They do not belong exclusively to the drivers of vehicles. Foot passengers have the right to walk upon them; and except for the greater difficulty of guiding and arresting the progress of vehicles, it is, as a matter of law, as much the duty of the vehicles to keep out of the way of the foot passengers, as it is for the latter to escape being run over by the former. The use of the streets of cities and villages, and of highways for railroads, is allowed only because it is considered not to be a substantial interference with their free and unobstructed use as highways for passage. So long, therefore, as there is no interference with the public right of passage, railroads are lawful structures. But if operated upon the theory of exclusive right to their track, they become usurpers and wrong doers. I make these observations, that the practice of drivers, not of railroad cars only, but of omnibusses, carts, express wagons, &c., of disregarding the rights of foot passengers, may, if possible, be checked. In our over-crowded city, it is of vital importance that the greatest care and caution, should be observed by the drivers of all kinds of vehicles. It is to the drivers we must look for a remedy for this great VOL. XXX. 15 Roosevelt agt. The New York and Harlem Railroad Company. and growing danger. The railroad companies and the omnibus proprietors cannot control their servants, and are not, therefore, morally responsible for their acts. The request to charge was properly overruled. If there was time for the plaintiff to pass, I do not think that she was bound to wait, even though there may have been danger of slipping or falling, until the car passed. Not having discovered any error in the trial, I am in favor of affirming the judgment and order. SUPREME COURT. JAMES I. ROOSEVELT agt. THE NEW YORK AND HARLEM RAILROAD COMPANY. A plea of tender is an unequivocal admission of the justice of the plaintiff's claim to the extent of the sum tendered. To render a tender valid the money tendered should be brought into court. But where it is not paid into court, the irregularity will be considered waived, where the answer of the defendant is accepted and acted upon without raising the objection. If a tender be irregular, the allegation that the defendant offered a certain sum as due to the plaintiff in an answer, however defective it may be in not setting up a legal or equitable defence, is an admission of the plaintiff's right to the sum offered; and the plaintiff may be entitled to relief under section 244 of the Code. So, when the admission of the plaintiff's claim is made by way of an offer of judgment, the sum so offered to be paid may be enforced under section 244. Where in an action upon a bond secured by a mortgage, the defendant set up a counter-claim, alleging a tender of a certain amount of money to the plaintiff, and praying that the mortgage be decreed to be satisfied by the plaintiff: Held, that although in all cases of counter-claim, an offer to pay a sum named may not and ought not to be treated as an admission of the justice of the plaintiff's claim, so as to entitle him to an order that the defendant pay such sum to the plaintiff, yet in this case the order might with propriety and justice be made. To entitle the defendant to a judgment that the plaintiff execute a satisfaction of the mortgage given to secure the payment of the bond in suit, it is necessary that the defendant pay or tender the amount due and owing on the bond. Payment is a condition precedent to the right to a satisfaction piece. The tender of the whole amount due discharges the lien of the mortgage from the date of such tender. Roosevelt agt. The New York and Harlem Railroad Company. Payment to the plaintiff of the amount admitted to be due, by an order under section 244, cannot affect or impair the right to have satisfaction of the mortgage when the whole debt is paid. New York Special Term, January, 1866. APPLICATION by plaintiff for an order under section 244 of the Code, that the defendant pay plaintiff a certain sum tendered in the answer served in this action. JAMES I. ROOSEVELT, plaintiff in person. MULLIN, J. This action was brought to recover the sum of $30,000 and interest, claimed to be due on a bond executed and delivered by the defendant to one Mary Murray, on the 8th November, 1851, payable in five years from date, with interest at the rate of seven per cent per annum. The bond was assigned to the plaintiff, who is the owner and holder thereof. The answer contains two defences: 1st. A tender of $30,962.50 on the 23d of August, 1864, in United States legal tender notes, which were refused, as it is alleged, on the ground that the act of congress making such notes a legal tender in payment of debts contracted before its passage, was unconstitutional. The answer further alleges, that the plaintiff agreed with the defendant that if such notes were held to be a legal tender, he would accept them in payment of his debt. It was also alleged that the defendant was ready and willing to pay said sum so tendered, to the plaintiff. The second defence was a counterclaim. The same facts in regard to the tender of the money were stated, accompanied with a prayer that the mortgage which was given to secure the payment of the said debt, be decreed to be satisfied by the plaintiff. The plaintiff now asks for an order requiring the defendant to pay to him (the plaintiff) the sum so offered to him as aforesaid, pursuant to the last clause of section 244 of the Code. That clause is in these words: "When the Roosevelt agt. The New York and Harlem Railroad Company. answer of the defendant expressly, or by not denying, admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy." The important, and indeed the only question to be determined on a motion under this provision of the Code is, does the defendant admit a part of the claim of the plaintiff to be just? A plea of tender is an unequivocal admission of the justice of the plaintiff's claim to the extent of the sum tendered. So conclusive is the admission, that if the tender is refused and the parties proceed to trial, and it shall turn out that the plaintiff was not legally entitled to anything, the plaintiff shall have a verdict for the sum tendered. To render a tender valid, the money tendered should be brought into court (Brown agt. Ferguson, 2 Denio, 196; Halsey agt. Flint, 15 Abbott, 367; Sheridan agt. Smith, 2 Hill, 538; Livingston agt. Harrison, 2 E. D. Smith), and if not brought in, the plaintiff may sign judgment. (1 Tidd's Pr. 612; Chap man agt. Hicks, 2 Dowling's P. C. 641; 2 C. M. and R. 633.) In Sheridan agt. Smith, NELSON, J., held that if the plaintiff accepted a plea of tender, and replied thereto, tendering an issue, without at the time receiving notice that the money is paid into court, he waives the irregularity, The money tendered in this case was not paid into court, and it is to be inferred, from the fact that the answer is treated as part of the pleadings, that it was accepted without the money having been paid in. On the facts before me, I must treat the plea of tender as sufficient, although the money has not been paid into court. But if the tender was irregular for the reason stated, the admission of the justice of the plaintiff's claim would be none the less distinct and unequivocal. The allegation that the defendant offered a certain sum as due to the plaintiff in an answer, however defective it may be in not setting up a legal or Roosevelt agt. The New York and Harlem Railroad Company. équitable defence, is an admission of the plaintiff's right to the sum offered. The second defence, although a counter-claim, contains as distinct an admission of the justice of plaintiff's claim, to the extent of the sum offered, as does the plea of tender, and it is therefore unnecessary to refer to it further. If I am right in holding that the answer admits the justice of part of the plaintiff's claim, it only remains to consider whether there is any reason why the plaintiff is not entitled to relief under the clause of the 244th section of the Code, because of the nature of the defences set up in the answer. First. It is said that the clause of the section under consideration, was not intended to apply to such a case as the one before us; that it was intended to apply only to cases where the action is to recover an indebtedness, a part of which is admitted by the defendant to be justly due, and does not apply to cases where the admission is inferred from a plea of tender, offer of judgment, or by way of allegations of offer of tender in a counter-claim, or other defence, resting on performance of a contract. It is quite probable that those who prepared the clause in question, did not have in view a case like the one before me; and did not, therefore, in that sense, intend to reach it by the clause in question. But the intention of the framers of a law, is generally derived from the language used. It is very seldom that we can go back of the statute and ascertain the actual reasons which induced its enactment, and when we can, experience has demonstrated that the language of the act very often fails to secure the desired end, and not unfrequently defeats it. Looking, therefore, to the words of the statute, it is clear that the debt due on the bond is a "claim," which the plaintiff has against the defendant, and it is equally clear that the answer admits the justice of that claim. The case is, therefore, within the very terms of the statute. The defendant, by the plea of tender, if accompanied as it should be by payment into |