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Collins v. Ætna Accident & Liability Co.

142 N.Y.S. 304 Court Argued May term, 1913, before LEHMAN, BIJUR, and WHIT-JJ. Decision date 1913-06-17 English

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p. 304
COLLINS v. ÆTNA ACCIDENT & LIABILITY CO.
(Supreme Court, Appellate Term, First Department.
June 17, 1913.)

Headnote

Costs (§ 42[1] )—Ineffectual Tender—Effect.
Defendant’s insufficient tender will not entitle Mm, on prevailing, to costs, and an order of judgment for plaintiff for the amount of the tender should carry appropriate costs.
[Ed. Note.—For other cases, see Costs, Cent. Dig.. §§ 137-164; Dec. Dig. § 42.*]
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by William R. Collins against the .¿Etna Accident & Liability Company. From a judgment for defendant, plaintiff appeals. Modified and affirmed.
p. 305
Argued May term, 1913, before LEHMAN, BIJUR, and WHIT-JJ.
James E. McNaboe, of New York City (Charles J. Holland, of New York City, of counsel), for appellant.
James B. Henney, of New York City (Floyd K. Diefendorf, of New York City, of counsel), for respondent.

The defendant at the trial attempted to tender the sum of $38 to the plaintiff, representing $36 for damages and $2 for costs. The tender was concededly not made in accordance with the provisions of the Municipal Court Act and was therefore ineffective.

The judgment in favor of the defendant for $20 costs should therefore be modified, to the extent that judgment is ordered for the plaintiff for the sum of $36, with appropriate costs, and the judgment, as modified, affirmed, without costs to either party upon this appeal. All concur.