Leslie v. Walrath — 9 N.Y. St. Rep. 652

Majority

p. 652

Joseph E. Leslie, Resp’t, v. Emma Walrath et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed June, 1887.)

Headnote

1. Offer of judgment—Code Civ. Pro., § 738—Offers not in comFLIANCE WITH THE STATUTE MAT BE TREATED AS A NULLITY.

Code Civ. Pro., g 738 provides that a defendant may, before trial, serve upon the plaintiff’s attorney, a written offer, to allow judgment to be taken against him, for a sum, or property, or to the effect therein specified with costs. Held, that an offer which does not comply with the statute is a nullity, and may be treated as such by the party upon whom it is served.

3. Same—Offer limiting costs to those accrued at date thereof is UNAUTHORIZED.

Held, that an offer which limits costs to those which have accrued at the date thereof is not in compliance with the statute.

Appeal from an order of the Chautauqua county clerk defendant’s motion for re-taxation of costs.

Lockwood & Shaw, for app’lts; Holt & Holt, for resp’t.

Action on a promissory note. The plaintiff claimed to recover the sum of $275, with interest from 4th September, 1884, besides costs. The defendants set up a counterclaim, and, before trial, served an offer of judgment “for the sum of $150, with costs to date.” The offer was dated, it was not accepted, a trial was had, and the plaintiff obtained a verdict for the sum of $112.50.

The plaintiffs’ counsel contends that the offer was ineffectual by reason of the limitation imposed by it in respect

p. 653

to costs, its effect being, if accepted, to subject the plaintiff to the costs of entering judgment upon the offer, and of execution and entering satisfaction. We think he is right in that contention. The statute authorizing the offer provides that it shall allow judgment “for a sum, or property, or to the effect, therein specified, with costs.” Code Civ. Pro., § 738 The party making the offer frames it to suit himself. If it does not comply with the statute, in all substantial respects, it is a nullity, and it may be treated as such by the party served with it. McFarren v. St. John, 14 Hun, 387 ; Riggs v. Waydell, 78 N. Y., 586 . If the party served with a valid offer accepts it, he is entitled to enter judgment upon it, and to tax the costs of the entry upon the party making the offer. But the offer in this case was so framed, that the plaintiff, if he had accepted it could have taxed no costs accruing subsequently to the date of the offer. He would have been limited by the terms of the offer.

The appellant’s counsel suggest that the words, “to date,” mean the date of the judgment to be entered on the offer. We do not think they are fairly susceptible of that construction. It makes them superfluous and meaningless. But the case is not one for judicial interpretation. The offer should be specific and certain in all material respects.

It is also suggested by the appellant’s counsel that the' word “costs,” used in the offer does not include disbursements. We think otherwise. The word “costs,” is to be regarded as used in the same sense in the offer as in the section of the Code which authorizes an offer, and there it evidently includes disbursements.

The order should be affirmed, with ten dollars costs and disbursements.

Haight and Bradley, JJ., concur.