James Johnston, Respondent, v. Chester Catlin, Appellant

James Johnston, Respondent, v. Chester Catlin, Appellant. (Argued January 8, 1874; decided May term, 1874.) Where, in an action to recover unliquidated damages, defendant serves an offer of judgment under section 385 of the Code, in determining whether the judgment obtained is more favorable than that offered, interest cannot be added to the sum offered. Defendant cannot, by offering a sum less than plaintiff is entitled to, and then by persisting in his defense ■ and postponing a recovery until that sum, with the interest added to it, exceeds the recovery, obtain the benefits of that section as to costs. This was an action to recover for services rendered. Defendant, before trial,, served an offer to let judgment be ■ entered for §105, which was not accepted. ■ The case was tried by a referee, who, six months less one day after the offer, reported in favor of plaintiff for $106 damages, he considering the same as unliquidated. Plaintiff’s costs were taxed as if no offer had been made. On motion, at Special Term, costs were ordered to be readjusted, disallowing costs to plaintiff and allowing costs to defendant accruing after the offer. This order was reversed at General Term. Held, as above. (See Pike v. Johnson, 47 N. Y., 1.) E. M. Holbrook for the appellant. B. Vary for the respondent. [MAJORITY — Gray, C.,] Gray, C., reads for affirmance. All concur. Order affirmed.