M'Lees v. Avery — 4 How. Pr. 441

Majority

p. 441

SUPREME COURT.

Malissa M’Lees agt. William L. Avery.

Headnote

A defendant against whom a judgment is obtained for a less amount than he offered in writing, to allow judgment to be taken against Mm, under section 385, is entitled to costs against the plaintiff, from the time of the offer.

Such defendants is not entitled to an extra allowance, under sections 308, 309.

-- Special Term, May, 1850.

—This action was commenced by summons and complaint, in January, 1849. It was brought to recover of the defendant money collected by him, as attorney for the plaintiff. The plaintiff in her complaint, as amended, demanded judgment for $255. The defendant, on the day of the service of the copy of the amended complaint, served upon the plaintiff’s attorney, an offer in writing, under section 385 of the code, to allow judgment to be taken against him for $125. The plaintiff declined the offer, and the cause was referred to a referee to hear the cause, and report upon the whole issue, and he found in favor of the plaintiff $115. The defendant now moves for an extra allowance in his favor of ten per cent, on the sum claimed by the plaintiff. The motion is resisted on the ground that no extra allowance can be made in this case.

W. L. Avery, in person W. L. F. Warreh, for plaintiff.

—By the 385th section of the code, the defendant was entitled to costs of the suit against the plaintiff, which accrued subsequent to his offer. The plaintiff was entitled to costs up to the time when the offer was made. The question is, can an extra allowance be made to the defendant, under the circumstances of this case. An extra allowance cannot be made unless the party in whose favor it is claimed has recovered judgment in the cause. This is obvious from an attentive examination of § 309. The 1st subdivision'is, that if the plaintiff recover judgment, the extra allowance shall be upon the amount of money, or the value of the property recovered, or claimed or attached, &c. 2d. If the defendant recover judgment, it shall he upon the amount of money, or the value of the property claimed by the plaintiff, &c., &c. The defendant did not recover judgment in 'this cause, but the judgment went against him. He does not fall within the scope of the section and is entitled only to the costs which accrued subsequent to the offer. These costs axe to be collected by motion, and probably may, on a proper applica

p. 442

cation, be set off against the plaintiff’s judgment. The term costs embraces merely the ordinary costs of the suit, and not the extra allowance spoken of in sections 308 and 309. I think the defendant is not entitled to an extra allowance in this case.

Motion denied.