Wireman v. Remington Sewing Machine Co. — 39 N.Y. Super. Ct. 314

Majority

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FRANCIS C. WIREMAN, Plaintiff and Apellant, v. REMINGTON SEWING MACHINE COMPANY, Defendant and Respondent.

Headnote

OFFER OF JUDGMENT—PRACTICE THEREIN.

Defendants on the 4th of November, 1874, offered to allow judgment to be taken against them for seven hundred and fifty dollars, with interest and costs, which offer was not accepted, and defendant afterwards answered, contesting plaintiff’s claim for all sums beyond the said seven hundred and fifty dollars.

Plaintiff moves for an order that the defendant pay to him the amount of said offer.

Held—That since the amendment of § 244 of the code (in 1857), such an application has been and should be granted.

This is a substantial right when the answer “ admits part of the plaintiff’s claim to he just,” and in conformity to § 244 of the code;

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it being in the nature of a right to a judgment, and, therefore, no question arises as to whether a party can appeal from an order affecting it.

Before Curtis and Speir, JJ.

Decided May 3, 1875.

Appeal from an order of special term.

The plaintiff, in his complaint, alleges that he made, furnished, and delivered to the defendants certain sewing-machine covers, drawers, tables, &c., for which the defendants agreed to pay him one thousand two hundred and fifty dollars.

The answer admits the making and furnishing of the same articles, but sets up that they agreed to pay plaintiff therefor seven hundred and fifty dollars, and no more, and that they have always been ready and willing, and have repeatedly offered to pay the plaintiff said sum of seven hundred and fifty dollars, but the plaintiff has refused to accept the same.

The defendants have also offered to allow plaintiff to take judgment for said sum of seven hundred and fifty dollars, with interest and costs, but the plaintiff did not accept the same.

The plaintiff in his complaint also alleges that he did certain other work, and furnished certain other material for the defendants, of the value of forty-one dollars and ten cents, which the defendants deny.

A motion under section 244 of the code was made by the plaintiff at special term, that the defendants pay said sum of seven hundred and fifty dollars to him with interest, &c., which motion was denied, and the plaintiff appealed.

Jno. J. Lindsay, for respondent.

Wm. G. Bussey, for respondent.

In the case of Smith v. Olssen (4 San. 711), decided in 1852, it was held that the court would not make an order like that applied for here, where the defendant before answering served the plaintiff with a written offer, allowing the latter to take judgment for the part of the claim so admitted. But the reason which the court assigned for this refusal was obviated by the amendment of section 244 of the code in 1857, and since then it has been the practice to grant the application, although an offer has been made and rejected. When the justice of a part of the plaintiff’s claims is admitted, both by the answer and by an offer to submit to a judgment, an additional reason exists for extending the remedy granted by the legislature. A refusal is in substance saying, to the plaintiff, you shall have nothing of what the defendant admits belongs to you until the end of the litigation (Duncan v. Ainslie, 26 Barb. 201 ; Roosevelt v. N. Y. & H. R. R. Co., 45 Barb. 554 ; Guiet v. Murphy, 18 How. Pr. 411 ).

In the present cause there is no splitting up of the cause of action, as the admission in the answer relates only to the making of the sewing machines, for which one thousand two hundred and fifty dollars is claimed as due by the plaintiff, and for which the defendant admits seven hundred and fifty dollars to be due. There appears to be no just reason why this amount of seven hundred and fifty dollars should be withheld from the plaintiff, which.the defendant concedes is due to him, and about which there is no manner of controversy, and the payment of which to the plaintiff can in no way prejudice the right of either party in proceeding by legal steps to determine the real matters in controversy between them. To hold otherwise would defeat the right of a party to the relief afforded by this wise "and equitable provision of the law.

This right is a substantial right, when the admis

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sion in the answer “ admits part of the plaintiff’s claim to be just” in conformity to section 244 of the code, it being in the nature of a right to a judgment, and no question arises as to whether a party can appeal from an order affecting it.

The order appealed from should be reversed with costs of appeal to the appellant, to abide the event of the suit.

Speir, J., concurred.

Cases cited

Roosevelt v. New York & Harlem Railroad 45 Barb. 554 N.Y. Sup. Ct. 1866-01-02 p. 315
Guiet v. Murphy 18 How. Pr. 411 N.Y. Super. Ct. p. 315