Waite v. F. J. Kaldenberg Co. — 22 N.Y.S. 1006

Majority

p. 1006

WAITE v. F. J. KALDENBERG CO.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

■Costs—Offer of Judgment—Continuance of Action.

Code Civil Proc. § 511, which permits the entry of judgment in plaintiff’s favor for the part of his claim admitted by answer to be just, and which awards him costs if he elects not to continue the action for the remainder of the claim, does not entitle him to costs on entering up judgment for the part admitted to be due, where he elects to continue the action as to the remainder; and on such continuance he can recover costs only in ease he succeeds and recovers an amount which would entitle him to costs had he originally brought his action for the amount not conceded to be due. Bradbury v. Winterbottom, 13 Hun, 536 , explained.

Appeal from special term, Hew York county.

Action by Charles O. Waite against the F. J. Kaldenberg Company for $1,955.88, alleged to be due plaintiff under a contract by

p. 1007

which he became defendant’s agent for the sale of its manufactured articles. The answer admitted an indebtedness of $869.82, and 'an order was entered that plaintiff have judgment for that sum, that the action be severed, and that plaintiff have leave to continue the action as to the remainder. Plaintiff accordingly elected to continue. On entering up judgment the clerk taxed costs in plaintiff’s favor. From an order made at chambers denying defendant’s motion to modify the judgment by striking off the costs, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and INGRAHAM, J.

F. A. Thomson, (James J. Allen, of counsel,) for appellant.

Douglass & Minton, (John B. A. Mullaly, of counsel,) for respondent.

Section 511 of the Code,^[1] under the authority of which this judgment was entered, gives to the moving party the right to a judgment for the part admitted to be due. No provision is made for an award of costs to him upon the entry of that judgment, unless he elects not to continue the action for the remainder of the claim, in which case he is awarded costs as upon a final judgment in any other case. If, therefore, he elects to continue the action, it seems to have been the intention of the legislature to award him costs only in case he succeeds, and recovers an amount which would entitle him to costs had lie originally brought his action for the amount not conceded to be due. The right to this judgment depends upon this section of the Code, and the only judgment that the plaintiff on such an application can recover is that allowed by this section, which does not include costs, except upon the condition that he elects not to continue the action for the amount not conceded to be due. The case of Bradbury v. Winter-bottom, 13 Hun, 536 , which, upon its face, may seem to be in conflict with these views, however, is not, because the judgment in that case was entered under an offer made under section 758 of the Code of Civil Procedure, and the question there was whether or not the plaintiff was entitled to costs upon such offer. The order must therefore be reversed, and motion granted, but without costs.

1 This section provides: “Where the answer of the defendant expressly or by not denying admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff fop the part so admitted; and, if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. The order must prescribe the time and manner of the plaintiff’s election. If the plaintiff elects to continue the action, his right to costs upon the judgment is the same as if it was taken in an action brought for only that part of the claim. If the plaintiff does not elect to continue the action, costs must be awarded, as upon final judgment in any other case.”