MAGNIN against DINSMORE

MAGNIN against DINSMORE. New York Superior Court; Special Term, December, 1873. Costs.—Off.ee of Judgment. Under section 385 of the Code of Procedure, as amended in 1851 and 1856, the costs which plaintiff is entitled to, if he fails to obtain a more favorable judgment than that offered him, are those of pro- ■ ceedings prior to the offer; and all costs which accrued subsequently are. to be taxed in favor of defendant. The costs intended by this provision include disbursements. Elise Magnin sued William B. Dinsmore, as president of a joint stock company; and defendant offered to allow judgment, which plaintiff did not accept, but went to trial and recovered a verdict not more favorable than the offer. The judge who presided at the trial, therefore, awarded to the defendant all costs subsequent to the offer. Upon the taxation of the costs by the clerk, the plaintiff claimed that he was entitled to the costs of the action for all proceedings up to the time of the offer. The clerk allowed this claim, against defendant’s objection, and the defendant appealed to the court To the same effect, Klinck v. Kelly, page 135 of this volume. [MAJORITY — Freedman, J.] Freedman, J. In section 385 of the Code, as amended by chapter 479 of the Laws of 1851, p. 903, the words “and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant’s costs,” are separated from the words “from the time of the offer” by a comma, thus showing clearly that it was the intention of the legislature, which then for the first time enacted the prohibition of plaintiffs’ recovery of costs in the cases contemplated by said section, to enact that such prohibition should run from the time of defendants’ offer, and -6 ' should not relate back as a penalty to the time of the commencement of the action. In Burnett v. Westfall, 15 How. Pr., 430, the same construction was adopted, notwithstanding the court failed to notice the existence of the comma above referred to. It is true that the language of the section has been again amended in respects not necessary to be noticed here, by chapter 824 of the Laws of 1866, vol. 2, p. 1845, and that in the amendment, as published, the said comma has been omitted. But in view of the construction adopted by the supreme court, in Burnett v. Westfall, of which the legislature of 1866 must be presumed to have been cognizant, this bare omission does not per se demand a different construction; and as the one previously adopted is the more equitable one, it should be retained. The plaintiff, having recovered a judgment for more than fifty dollars, is the prevailing party, 'and as such he is entitled to costs under section 303. Under section 304 such costs are allowed to her of course. But under-the operation of section 385 they are to be confined to the time prior to the offer, and all costs which accrued subsequently are to be taxed in favor of the defendant. The costs to be taxed on either side include, as a matter of course, the necessary disbursements. The taxation should be affirmed.