Hyperlawhypertext legal database Safety Steam Generator Co. v. Dickson Manufacturing Co. 40 N.Y. St. Rep. 681

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Safety Steam Generator Co. v. Dickson Manufacturing Co.

40 N.Y. St. Rep. 681 Court N.Y. Gen. Term Decision date 1891-10-16 English

Contents

Majority

p. 681
The Safety Steam Generator Co., App’lt, v. The Dickson Manufacturing Co., Resp’t.
(Supreme Court, General Term, First Department,
Filed October 16, 1891,)

Headnote

Costs—Extra allowance—Offer of judgment.
The court has power, in a proper case, to grant an extra allowance where judgment is entered upon acceptance of an oiler.
Apfeal from an order denying motion for an allowance.
W. B. Closson, for app’lt; F. E. Smith, for resp’t.

The motion in the court below was denied. It appeared that after issue joined the defendant served an offer of judgment which was accepted by the plaintiffs, whereby defendant offered to allow judgment for a certain sum and costs. « The plaintiff made a motion for an allowance, which was denied by the court because of a supposed want of power.

In this we think the court erred. The case of Landon v. Van Etten, 57 Hun, 122 ; 32 N. Y. State Rep., 439, seems to be in conflict with this proposition. Although the precise question was not involved, yet it was there held that an allowance was part of the costs, and that a defendant succeeding after an offer, being entitled to costs, was entitled to an allowance. The case of Wing

p. 682
v. De la Rionda, 126 N. Y., 680 ; 38 N. Y. State Rep., 1009, also establishes the principle that an extra allowance is part of the costs. Therefore, the plaintiff being entitled to costs, the court had power, in a proper case, to grant an allowance.

Our attention has been called to the case of Penfield v. James, 56 N. Y, 659 , in which the court seems to have held that where ah insufficient offer of judgment was served, the plaintiff was not entitled to an allowance. We think that either the court must have acted under a misapprehension of the facts or the case must be incorrectly reported.

The order should be reversed,‘with ten dollars costs and disbursements, and the plaintiff allowed to renew his motion at special term. •

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.