Third Department, January, 1921. [Vol. 194. express a doubt whether the history of the case and the trial, after the answer, did not amount to a waiver of the payment of the money into court, if such payment was necessary. (Platner v. Lehman, 26 Hun, 374; Cass v. Higenbotam, 100 N. Y. 248; Wilson v. Doran, 110 id. 101; Knight v. Beach, 7 Abb. Pr. [N. S.] 241; Halpin v. Phenix Ins. Co., 118 N. Y. 165, 178.) Manifestly the provisions of the Code of Civil Procedure relating to tender have no application to this case. A payment into court is necessary if it is to extinguish a debt, stop interest, prevent the recovery of costs or in the cases provided by sections 731-734 of the Code of Civil Procedure. Here the tender was not for any such purpose; it was simply the act of a party indicating its acceptance of an option and an attempt by it to perform its conditions; hence no payment of the money into court was necessary. (Rush v. Wagner, 184 App. Div. 502; Cresco Realty Co. v. Clark, 128 id. 144; Smith v. Slosson, 89 Hun, 568, 573; Bieber v. Goldberg, 120 App. Div. 457, 458; Exchange Fire Ins. Co. v. Norris, 74 Hun, 527; Freeson v. Bissell, 63 N. Y. 168; Selleck v. Tallman, 87 id. 106; Halpin v. Phenix Ins. Co., 118 id. 165, 178.) The cases recognize that by the payment of the money into court the tenderee is bound to get it and the tender cannot be withdrawn. Here, evidently, the payment is irrevocable and the only relief the ore company asks or can have is that after the parties from whom it purchases have been fully paid by it, or by the proceeds of the sale of the property to be brought into court, it shall have the remainder of the proceeds if any. This is not an action at law based upon technical grounds, but relates to the marshaling of assets in a court of equity. As we have seen, the acceptance of the offer, and the tender, created a valid contract for the mines. Where premises under contract of sale are sold in partition, the vendor and vendee will receive the share of the proceeds to which they are respectively entitled. The question here is not one of tender, but of an offer to perform a contract and being prevented from performing, which is equivalent to performance unless it is sought to bar costs, to prevent a recovery of money loaned or stop interest. As the basis of creating a liability or accepting an offer, a payment into court is not necessary. App. Div.] Third Department, January, 1921. Here the requirement was to pay earnest money, and its offer and refusal were equivalent to payment. When an option is accepted, the acceptance makes a mutual contract which may be specifially performed. (Hamilton College v. Roberts, 223 N. Y. 56, 63.) In specific performance, where a tender is refused, it is unnecessary to pay the money into court. (Murray v. Harbor & Suburban B. & S. Assn., 91 App. Div. 397; affd., on opinion below, 184 N. Y. 596.) A court of equity is not bound by stringent rules so that it must deny equity and justice on technical grounds. Equity does not expect or require that vain and unnecessary things be done. The other parties interested in the option cannot suffer, as an officer of the court will have the moneys and will pay them; the only question is in what manner will he dispose of the balance of the moneys, and equity, justice and fair dealing can have but one answer to that question. It was error for the court below to determine that the option was not exercised because of the failure to pay the money into court. The questions upon which the respondents have succeeded do not affect, in a substantial degree, the original parties who gave the leases and options, or their descendants, but principally affect men and mining companies who are dealing in this speculative and uncertain kind of property. The most of the conveyances from the tenants in common to the respondents contain this, or a similar provision: "This conveyance is made subject to two leases of the rights and interests hereby conveyed and an option to purchase the same contained therein. All obligations therein of parties of first part are assumed by the party of second part." The position of the respondents is technical and against the equities of the case. The fact that Pilling & Crane took leases and options of mineral rights does not indicate that there was anything of value covered by them. The nature of such property is well known. To have a substantial value there must be expensive drilling to show whether or not there is ore of commercial value. Quite probably the original lessors and their representatives would not have known that there was valuable ore in the reservation aside from the development made by the ore company. It has drilled five holes, one of which was Third Department, January, 1921. [Vol. 194. put down 700 feet. It has been demonstrated to its satisfaction or its hope that there is value there. Its rights are not to be balanced in equitable consideration by the claim of parties who have slipped in during the pendency of the action, or in contemplation of it, and with knowledge of all the facts acquired the rights of the original grantors in the hope that by some technicality they may get the benefit of the value discovered by the ore company. If respondents have spent large sums in buying doubtful and unfounded claims to deprive the ore company of the profits fairly coming to it, that does not appeal to a court of equity under the circumstances. The controversy is between the ore company, which in good faith has taken its lease and options and given the property a value, and companies which, knowing all the facts, have bought doubtful outstanding rights, relying upon technicalities which have no substantial basis in a court of equity. They do not misunderstand the facts; they are of record and are well known. The misunderstanding arises in assuming that a court of equity will rest its judgment on technicalities, overlooking the equities of the parties. Considering the authorities cited in the opinion at Special Term, it may be considered that the question as to the payment of the money in court is not entirely free from doubt. If a mistake has been made, it was the innocent mistake of an attorney, an officer of the court, and the client who seasonably asks to be relieved from such a mistake before judgment should be favored. In the interest of safety the appellant asked for the amendment. We should not compel it to rest its case upon what may be the final decision of the court, upon a technical question of practice which it seeks to avoid. The court will render assistance to suitors in arriving at a determination of litigations upon the merits; defects or omissions will be corrected by proper amendments or disregarded as justice requires. (Code Civ. Proc. §§ 721-723.) The motion should have been granted upon payment of motion fees and a trial fee, and this question of practice removed from the case. The order should be reversed and the motion granted, upon the payment by the ore company of ten dollars costs of motion and a trial fee. The judgment appealed from should be App. Div.] reversed upon the law and the facts and a new trial granted. The reversal is without costs so far as the Northern Ore Company is concerned but with one bill of costs to the pulp and talc companies to be paid from the proceeds of sale. All concur. Order reversed and motion granted, upon payment by ore company of ten dollars costs of motion and a trial fee. Judgment appealed from reversed upon the law and the facts and a new trial granted. The reversal is without costs so far as the Northern Ore Company is concerned, but with one bill of costs to the pulp and talc companies to be paid from the proceeds of sale. The court disapproves of findings of fact 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 58, 61. NELLIE C. DOTY, Appellant, v. RENSSELAER COUNTY MUTUAL FIRE INSURANCE COMPANY and JOB DOTY, Respondents. Third Department, January 5, 1921. Husband and wife — action by wife on theory that insurance money on house maintained for her by her husband after abandonment should be used for rebuilding — admissibility of verbal agreement by husband for maintenance and support of plaintiff performance of said agreement - wife not bound to live in one of several houses designated by husband. -- specific In an action by a wife upon the theory that after the house in which she had lived for twelve years was destroyed, the insurance money from it should be taken for rebuilding, it appeared that the plaintiff's husband, who had permanently abandoned her, without cause, continued to pay for necessary provisions purchased by her, and also paid the taxes and insurance upon the property. The plaintiff improved the premises from time to time and continued to live in the house until it was destroyed by fire. Held, that it was error for the court to exclude evidence of a verbal agreement between the plaintiff and her husband under which she continued to live in the house, to the effect that he would provide a home for her by giving her the use of the house and grounds during her natural life and pay for her maintenance and support, on the theory that there was not such a part performance of the oral agreement as would justify a specific performance thereof. Third Department, January, 1921. [Vol. 194. The plaintiff having forborne for many years to maintain an action for separation, and having forgiven her husband his desertion, and managed and cared for the property as her own, was entitled to the protection of the court and the specific performance of the agreement between them. The wife was not bound to live in one of four houses designated by her husband as that was not according to her marital rights. H. T. KELLOGG and KILEY, JJ., dissent. APPEAL by the plaintiff, Nellie C. Doty, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 22d day of January, 1920, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case. Thomas F. Galvin, for the appellant. Northrup R. Holmes [Thomas S. Fagan of counsel], for the respondent Rensselaer County Mutual Fire Insurance Company. Thomas S. Fagan, for the respondent Job Doty. JOHN M. KELlogg, P. J.: This case was before us on the pleadings in 188 Appellate Division, 29. The plaintiff and her husband had resided for eighteen years at Melrose in a house owned by him, when he without cause, on February 1, 1906, permanently abandoned her and took up his residence with his mother on the opposite side of the street. She obtained necessary provisions where they had formerly obtained them and he paid therefor. He paid the taxes and insurance upon the property. She, from time to time, improved the grounds by planting trees and shrubs, papered and painted rooms in the house and did many little things to make them permanently comfortable and desirable, and she continued to live there in that way until the house was destroyed by fire January 5, 1918. Thereafter he wrote her, giving her the right to select one of four houses mentioned for her home, which carried with it the idea that she was to live there without him. This action is brought upon the theory that after the house was destroyed the insurance money from it should be taken for rebuilding so that her old home would be restored. The facts as stated |