Majority
p. 620Julius Frendenheim, Resp’t, v. Julia Raduziner, App’lt, 0New TorTi City Court, General Term,, Filed December 17, 1894.)
Headnote
Judgment—Offer of judgment.Where the defense of part payment by note is interposed in an action for the price of goods sold and an offer for the balance, with interest and costs is made and accepted, an entry of judgment on such offer and acceptance bars a recovery of such residue in that action.
Appeal from a judgment, directed for plaintiff on a trial by the court without a jury.
W. F. Severance, for pl’ff; A. IT. Berrick, for def’t.
The alleged cause is goods sold and. delivered to defendant, of agreed price of $728.97; and the answer specifically admits this, and alleges that the defendant paid plaintiff on account thereof $560, by her certain promissory notes. The
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defendant, with her answer, served on October 20,1894, a written offer to allow judgment for $170, interest, costs, and disbursements, and the plaintiff thereafter, on October 24th, served a written acceptance of this offer, and upon November 2d he entered judgment upon this offer and his acceptance thereof for $192.28. However, before entry of this judgment, plaintiff obtained, on November 1st, an order permitting him to enter judgment for $170, with interest and costs, and to continue his action for the recovery of the balance. Appellant contended at trial that this offer of judgment, acceptance thereof, and the entry of judgment thereon, was a bar to plaintiff’s recovery of the balance of his claim in this action, and this contention seems correct, for the court had no right to grant this order of severance, upon the facts as disclosed in the papers upon which it was obtained. Appellant’s counsel contends “ that if defendant’s contention be sustained the result will necessarily be that plaintiff will lose $550 of a debt admitted to be just, and for which plaintiff holds defendant’s notes ” (this is not so, for he still can sue on the notes), “ and, in addition, that the plaintiff will be mulcted in a large sum for costs.” But even so, this will be due to the mistaken practice of his counsel; and, moreover, if plaintiff’s contention is sustained, the defendant will be mulcted in costs, and not because of any mistake made by her or her counsel. The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.