Hibbard v. Randolph — 56 N.Y. St. Rep. 431

Majority

p. 431

Heman A. Hibbard, App’lt, v. John H. Randolph, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed October 20, 1893.)

Headnote

1. Trial—Offer of judgment.

Under § 738 of the Code, the defendant is not limited to one offer of judgment, provided the offers are served within the time prescribed in. such section.

3. Judgment—Assignment.

Where, after an offer of judgment is made, the plaintiff recovers, but the defendant is entitled to costs accruing subsequent to offer, an assignee of such recovery takes it subject to defendant’s right to offset such costs.

Appeals from orders of the county court of Chautauqua county.

A. C. Pickard, for app’lt; J. D. Curtiss, for resp’t.

The defendant unquestionably had the right to serve the second offer of judgment.

The county court, upon conflicting affidavits, decided that the defendant did serve a second offer of judgment for the sum of ninety dollars, which was for a greater amount than plaintiff’s recovery, and, therefore, the defendant was entitled to costs accruing after service of that offer. In taking an assignment of plaintiff’s claim, the attorney took it subject to the right of the defendant to offset the costs to which he might be entitled against the plaintiff’s judgment, in whosoever hands it might be. Were the rule otherwise, the provision of the Code providing for offer of judgment would be practically ineffectual and nugatory. Warden v. Frost, 35 Hun, 141 .

The orders appealed from should be affirmed, with ten dollars costs and disbursements. .

Dwight, P. J., Haight and Bradley, JJ., concur.