R. E. Dietz & Co. v. Miller, Sears & Walling Co.

Majority

p. 510

R. E. DIETZ & CO. v. MILLER, SEARS & WALLING CO.

(Supreme Court, Appellate Term.

November 6, 1903.)

Headnote

1. Appeal—Material Error—Offer of Judgment.

Error in rendering judgment for an amount which the evidence shows cannot’be right is material on the question of costs; the filing of an offer of judgment being indicated, which cannot be assumed to have been invalid, though it is not annexed to the return.

Appeal from Municipal Court, Borough of Manhattan, Eleventh District.-

Action by R. E. Dietz & Co. against Miller, Sears & Walling Company. From a judgment for plaintiffs, and from an order denying a motion to amend the judgment, defendant appeals." Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Day, Van Zandt, Walsh & Webb, for appellant.

Baggotts & Ryall, for respondents.

In no aspect of the proof can the state of the account between the parties be made to result in the amount for which judgment was rendered, and the question is substantial, because of the offer of judgment, and the consequent difference in costs which must follow from an error in the computation. The justice’s indorsement on the summons shows that the offer of judgment was made, and, if there be any question of its form, that question should be presented by the return,.if we are to pass upon it. The filing of an offer is indicated of record, and, the paper not being annexed to the "return, we cannot assume that the offer ivas invalid, and thus disregard the error in the judgment on the ground of immateriality.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.