HERMAN v. LYONS

HERMAN v. LYONS. N. Y. Supreme Court, First Department; General Term, March, 1877. Costs.—Offer of Judgment. An offer by defendant to allow a judgment to be taken against him, made within ten days before the cause is reached in its regular order on the calendar, can be treated as a nullity by the plaintiff, and he can proceed with his action, and full costs will be allowed, as if no offer had been made. A defendant cannot prevent plaintiff from recoyering costs of trial, by serving an offer, within ten days before trial, to allow judgment for the full amount claimed, with costs. Appeal by defendant from an order confirming adjustment of costs. This action was brought by Abraham S. Herman against Herman Lyons. The cause was on the general calendar, and noticed for trial for the February term, and on motion it was placed on the special circuit calendar. On February 8, plaintiff’s-attorney received by mail from defendant’s attorney an offer of defendant, dated February 7, to allow judgment to be taken against him for a specified sum, viz., the amount claimed in the complaint, with costs. On the next day after the receipt of the offer, the trial came on regularly; the cause was regularly called in its order; and no one appearing for defendant, an inquest was taken by plaintiff’s attorney, and a verdict rendered for the plaintiff for the same amount as offered. Plaintiff then had his costs taxed, including costs of trial, and defendant thereupon moved to strike out the costs of trial which were incurred after the offer. Davis, P. J., denied the motion, holding that the “ adjustment was correct. The trial came on regularly in less than ten days after service of the offer. Plaintiff was not to be deprived of his trial and costs thereof by reason of the offer in the manner and at the time it was done in this case.” “ Adjustment affirmed, with $10 costs.” From the order entered defendant appealed. William Riley, for appellant. Simon H. Stern, for respondent, to show that an offer of judgment, to be effectual, should be served more than ten days before the trial, cited: Pomeroy v. Hulin, 7 How. Pr. 161; Walker v. Johnson, 8 Id. 240; Code, § 385, note; Wait’s Annotated Code, 733). [MAJORITY — The Court] The Court held as stated in the head-note. Order affirmed, with costs and disbursements. .