Smith v. Kerr

This action is a consolidation of three actions in which, respectively, the defendant’s attorneys prepared offers of judgments, annexed to each of them the affidavit of authority required by the statute (Code Civ. Pro., 740), and delivered copies of such offers and affidavits to the plaintiff’s attorney. The originals were retained by the defendant’s attorneys, and with their office and its contents were destroyed by fire. The offers were not accepted by the plaintiff, and the recovery by him was not more favorable than the offers. And for that reason the defendant claimed that he was and that the plaintiff was not entitled to costs from the time of such offers. Id., § 738. The clerk disallowed this claim of the defendant and taxed the plaintiff’s costs. And by the order of the special term the defendant’s motion for retaxation was denied.

If the defendants attorneys failed to observe this statutory requirement in making and serving the offers, the plaintiff’s attorney was at liberty to disregard them. McFarren v. St. John, 14 Hun, 387 ; Riggs v. Waydell, 17 Hun, 515 ; affirmed 78 N. Y. 586 ; Leslie v. Walrath, 9 N Y. State Rep., 652. The question, therefore, is, whether the delivery to the plaintiff’s attorney of copies, was a service of the offers within the meaning of the statute. If it requires the delivery of the original offer and affidavit, as distinguished from a copy, the defendant failed to make the requisite service. In terms the statute does not direct that to be done unless such direction is found in the provision requiring the service of “a written offer.” The delivery of an original paper is not necessarily essential to its service.

The old Code provided for the service of summons by delivering a copy of it (sec. 134), and so does the new Code. Sections 2878, 2910. When the manner of doing it is not governed by any statute, the service of process by delivering a copy and showing to the defendant, if he desires it, the original, is the recognized method of making service of it, Williams v. Van Valkenburg, 16 How. 152 .

The attorney is an officer of the court, and in the action in Avhich he appears he represents his client. And when a paper in the action purporting to be a copy is delivered by him, or by his direction, for the purpose of service upon the adverse party, or his attorney, it is presumed that it is a copy of an original, provided it purports to be a copy of a paper legitimately made by him in the action. It is usual and within the recognized practice to make service of papers in actions by delivery of copies and retaining or filing the originals. 1 Burrill Pr., 351. There seems nothing in the terms of the statute to take the service of an offer of judgment out of such ordinary rule and practice. If it may be or becomes important to the adverse party for any purpose, that it be done, the attorney making the service may usually be required to file the original with the clerk of the court.

It is not essential that the paper have the genuine written signature of the attorney subscribed to it, although the stat

Papers served are given authenticity by the fact that they are served by an attorney, or by his directions. The delivery by the defendant’s attorney to the attorney for the plaintiff of the copies of the offers and affidavits, established jorima facie the fact that such original offers and affidavits were made, and such delivery constituted the service of them.

The plaintiff’s attorney was required to so understand it, -and was authorized to treat the papers so delivered for the purpose of the service as the offers of judgment. He could not, therefore, effectually disregard them. But when the defendant came to ask for costs founded upon the fact of ■offers of judgment, it was necessary for him to furnish proof of service of them. This could properly have been done by the production of the originals, with proof of service made by delivery of copies. Their non-production was .sufficiently accounted for. It is said by counsel that it does not appear by the papers presented upon this review what was before the clerk on the taxation by him of the costs.

Ho papers bearing upon that question are properly here •other than those which were submitted to him. It must be assumed that all the papers in the appeal book are properly in it for consideration on this review. If anything in it was not legitimately there, correction should have been obtained by motion. Ho such objection, however, is made.

Upon the facts as presented, the defendant seems to have been entitled to costs from the time his offers of judgment were served.

The order should be reversed, and retaxation of costs ■ordered.

Barker, P. J., and Dwight, J., concur.