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Smith v. Olssen

6 N.Y. Super. Ct. 711 4 Sandf. 711 Court N.Y. Super. Ct. Decision date 1852-03-06 English

Delivered by Duer, J.,

Contents

Majority

p. 711
Smith and Knapp v. Olssen.

Headnote

Though the answer of the defendant admit part of the plaintiff’s claim to be just, the court will not make an order upon him to satisfy it under section 244 of the code, when it appears that before answering he made to the plaintiff a written offer allowing the latter to take judgment for the part of the claim so admitted.
While the mode of enforcing such an order is unsettled, tne court will, under such circumstances, leave the plaintiff to his ordinary and ascertained remedies.
March 6, 1852.
Motion that the defendant be ordered to satisfy a part of the plaintiffs’ claim, which by his answer he admitted to be just.
It appeared by the answer, that before answering the defendant had made to the plaintiffs .a written offer under section 385 of the code, to permit them to take judgment for the amount admitted to be due by the answer, which offer the plaintiff had declined to accept. It was objected to the motion, that section 24A of the code, as amended in 1851, did not apply to a case where the plaintiff had an opportunity to take judgment for the amount admitted to be due to him.
Smith & Woodward, for the plaintiffs.
R. B. Roosevelt & H. Brewster, for the defendant.

(on advisement with all the Justices of the court,) said, that the court would not make any order for payment by the defendant, under the last clause of subdivision five of section 24Á of the code, upon his admission in the answer, where it was made to appear that the defendant had, previous to answering, made to the plaintiffs an offer in writing, allowing him to take judgment for the sum admitted to be due by the answer, as prescribed in section 385. The court does not feel called upon to grant such an order to the plaintiff, under such circumstances,

p. 712
so long as it is not clearly settled to what extent the court may be compelled to go in enforcing the order “ as it enforces a provisional remedy.” (Code, § 244, last paragraph.) If lie insist upon claiming more than the sum for which the defendant has offered him a judgment, let him pursue the ordinary and ascertained remedy.

Motion denied.