Bradbury v. Winterbottom

Headnote

Severance of causes of action— offer to allow judgment to be taken for one of sevei'al claims — effect of, on right to sever.

Appeal from an order denying plaintiff’s motion to sever the action in reference to the claims alleged therein.

The plaintiff alleged two canses of action separately. 'The defendant denied by answer his liability upon the second canse of action, and served an offer to permit judgment to be taken against him for the amonnt claimed under the first canse of action. The answer interposed admitted the demand to which the offer related, by failing to refer to it in any way.

The court at General Term said: “ The offer was made under section 158 of the Code of Civil Procedure, and within the ten days allowed for its acceptance the plaintiff served notice of a motion for liberty to sever the action and for judgment for the first cause of action admitted, as suggested by the answer, and further that the action continue as to the second claim set out in the complaint. This proceeding was under section 511 of the Code, which provides that where a part of the plaintiff’s claim which may be severed from the remainder is admitted upon, the pleadings, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part admitted, and if the plaintiff so elect, that the action be continued with like effect as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. The application thus made was denied, and the plaintiff appealed. The denial must have resulted from a misapprehension of the effect of granting the relief sought, occasioned by the offer which it was doubtless supposed must be retained to prevent the plaintiff from recovering costs, and to secure them to the defendant if successful in resisting the second cause of action.

This was an erroneous view of the issue presented. When a severance is made, if an offer covering the separate claim has been accepted, the costs allowed in granting judgment for the sum would

be to tbe time of sucb acceptance, and if no acceptance were given, tben to tbe time of tbe motion granted. If tbe plaintiff, proceeding as to tbe severed claim, did not succeed, tbe defendant would be entitled to costs, because as to it tbe action proceeds as if it had been brought only to recover sucb claim, and tbe offer would not give tbe defendant more protection from, or right to costs than tbe statute confers. Tbe offer, therefore, in sucb a case accomplishes nothing. If tbe granting of sucb a motion as that considered occasioned no prejudice to tbe defendant, it should not have been refused. It was right under provisions of tbe Code that tbe application should be favorably received, because tbe claim was distinct and as sucb admitted to be due. Tbe offer doubtless, as already suggested, created tbe doubt which led to tbe denial of tbe motion, but that paper duly considered furnished no reason why tbe motion should not have been granted, as indicated herein.”

Tbe order appealed from should, for these reasons, be reversed, and tbe motion granted; but, as tbe question is novel, without costs to either party.