William Smith, Respondent, v. Alice Sheldon, Appellant

William Smith, Respondent, v. Alice Sheldon, Appellant. Offer of judgment — when more favorable than the judgment — a counterclaim extinguished by the judgment, considered — what counterclaims are not so extinguished. • In determining whether an offer of judgment is more favorable than a judgment actually recovered, the condition of the pleadings at the time the offer was served must be considered. Consequently, where the plaintiff in an action recovered a judgment for ninety - ■seven cents less than the amount for which the defendant offered, before service of the answer, to allow him to take judgment, and it appears that the judgment extinguished a counterclaim for twenty-five dollars, which would, not have been extinguished had the offer of judgment been accepted, the judgment recovered is more favorable than the offer. Claims or demands arising from distinct and independent contracts will sustain separate actions or counterclaims, and are not affected by actions between the same parties arising from other independent contracts or transactions. Appeal by the defendant, Alice Sheldon, from an order of . the County Court of Columbia county, entered in the office of the clerk of Columbia county on the 2d day of October, 1903, directing that the costs theretofore taxed in favor of defendant in the above-entitled-action be set aside, and that costs be retaxed by said clerk in favor of plaintiff and against defendant. Plaintiff brought an action against the defendant in the County Court, and in his complaint alleged that during the year beginning April 1, 1900, and ending on or about March 28, 1901, he worked a farm of the defendant upon shares pursuant to an agreement in writing, and .that the defendant is indebted to him for “a balance on account for produce raised on said farm during said term and sold by said defendant, the proceeds of which were received and retained by her, for money laid out and expended and for materials furnisheand purchased by plaintiff for the defendant, for plaintiff’s' share or interest in crops and produce still undivided and in possession of the defendant,- for plaintiff’s interest or share in live stock maintained on said farm amounting in the aggregate to the sum of Three hundred ninety-nine and 89/100 dollars,” as more fully appears by a. schedule made a part of said complaint. The schedule states in detail the items for which the plaintiff claims that the defendant is indebted to him, and included therein in addition to items of account expressly within the terms of said contract áre other items for extra work and materials furnished in connection with working said farm during said time, one item of which extends beyond said term and to the 1st day of May, 1901. The defendant’s answer is substantially a general denial, and as a counterclaim the defendant alleged “ that the plaintiff is indebted to defendant in the sum of one hundred dollars on the balance of an account for- goods sold by defendant to plaintiff and delivered,, money and property belonging to defendant had and received by plaintiff and for- personal property belonging to defendant, used and enjoyed by plaintiff between the 1st day of April, 1898, and the 1st day of May, 1901, both inclusive.” The answer demanded that the complaint be dismissed, and that the defendant have judgment against the plaintiff for $100. On the trial evidence was given to sustain the plaintiff’s cause of action, and- also to sustain the defendant’s counterclaim, and One of the items of the defendant’s counterclaim on which she offered proof -was five cords' of standing wood sold and delivered to the plaintiff in 1899 for $25. The referee to whom the issues were. referred found that the defendant was indebted to the plaintiff in the sum of $129.03 and directed judgment against the defendant therefor. After the plaintiff’s complaint was served, but before the defendant’s answer thereto was served, she served a written offer to allow judgment to be taken against her for the sum of $130 with costs. The offer of judgment was not accepted. After the decision of the referee was tiled the defendant taxed her costs and claimed that the plaintiff had failed to recover a judgment more favorable to him than the offer. A motion was then made to set aside said taxation of costs in favor of the defendant and to direct that costs be taxed in favor of the plaintiff against the defendant, which motion was granted, and from the order entered thereon this appeal is taken. J. D. Bell, for the appellant. John I. Grandell and John M. MacDonald, for the respondent. [MAJORITY — Chase, J. :] Chase, J. : In determining the effect of an offer to compromise the condition of the pleadings at the time the offer is served must be considered. (Tompkins v. Ives, 36 N. Y. 75.) The amount of the judgment rendered in favor of the plaintiff was ninety-seven cents less than the offer of judgment. It is claimed by the plaintiff that in addition to the money judgment recovered by him he has also extinguished the defendant’s counterclaim, and that, therefore, the judgment recovered upon the trial is more favorable to him than the offer. (15 Ency. Pl. & Pr. 56.) " The defendant contends that all the items of her counterclaim are so connected with the items of the plaintiff’s complaint that in determining the balance due the plaintiff such items constituting her counterclaim could have been proven under a general denial, and that had the plaintiff accepted her offer of judgment, such counterclaim would have been extinguished. The defendant is mistaken in her claim at least- to the extent of the item for wood claimed to have been sold by the defendant to the plaintiff about a year prior to the time wdien the written contract between the plaintiff and defendant was made and prior to the transactions upon which the plaintiff’s suit is based.* Such item appears to arise from an independent contract. Claims or demands arising from distinct and independent contracts will sustain separate actions or counterclaims, .and are not affected by actions between the same parties arising from other independent contracts or transactions. (Secor v. Sturgis, 16 N. Y.. 548.) We are.of the opinion that the plaintiff obtained a more favorable judgment than that offered by the defendant. The order should be affirmed, with ten ^dollars costs and disbursements. All concurred. Order affirmed, with ten dollars costs and disbursements.