¶1I concur in the reversal. The affidavit purporting to state the testimony does not show any tender of the $170, but merely an offer to pay on condition that a satisfaction piece should be given. A mere conditional offer to pay is not equivalent to an actual tender. Jones v. Seaman, 133 App. Div. 127, 130, 117 N. Y. Supp. 288, and cases cited. The determination of appeals upon affidavits in lieu of stenographer’s minutes is very unsatisfactory. The loss of the original minutes by stenographers in the Municipal Courts is altogether too frequent. I would suggest that such carelessness shows an unfitness for the position of official stenographer.
¶2BIJUR, J., concurs in result.