Hyperlawhypertext legal database Noonan v. Smith 12 Abb. N. Cas. 337

← Cases

Noonan v. Smith

12 Abb. N. Cas. 337 Court N.Y.C.P. English

Delivered by J. F. Daly, J.

Contents

Majority

p. 337
NOONAN v. SMITH.
N. Y. Common Pleas, General Term,
November, 1880.

Headnote

Costs.—Offer of Judgment.—Service of Copt.—Waiver.— Code Civ. Pro. § 740.
Where plaintiff’s attorney was presented with the original and a copy of an offer of judgment aud of the attorney’s affidavit of authority, and kept the copy and returned the original with a written admission thereon of “ due service of a copy,”—Held, on appeal from an order directing taxation of costs for plaintiff, and allowing defendant no costs, that service of the original offer and affidavit, if necessary, had been waived, and plaintiff could not object that service-had not been properly made.
Appeal by defendant from an order of the special, term, directing the costs of the action to be taxed on the part of the plaintiff, and setting aside the taxation of costs in favor of defendant, and allowing no costs to defendant.

The question as to which party is entitled to costs depends upon the effect to be given to the service of offer of judgment on September 15, 1877. A copy of the offer and of the attorney’s affi

p. 338
davit of authority (Code Civ. Pro. §740) was delivered to and left with the plaintiff’s attorney on that date. But at the same time, the original offer and affidavit were presented to plaintiff’s attorney, who indorsed thereon his admission of “ due service of a copy.” He now objects that a copy and not the original was served upon liim, and that the offer was ineffectual on that account.

If it be n.ecessary to serve the original offer and affidavit, it seems to have been waived in this case. Plaintiff’s attorney was presented with the original and the copy. He kept the- copy and returned the original with a written admission thereon that a copy had been duly served. Such was the transaction as appears by the record before us. Plaintiff cannot be permitted to object that service was not properly made. The order should be reversed, and taxation and allowance of costs by clerk, in favor of defendant, should be affirmed.

Daly, Ch. J., concurred.

On appeal this decision was affirmed by the court of appeals in 84 N. Y. 672 , without opinion.

Cases cited