
    Guttroff v. Wallace.
    (City Court of New York
    General Term,
    March, 1893.)
    ■A party electing to bring a cause to trial before bis time to accept an offer of judgment has expired, waives all rights he may have had under the offer.
    Appeal from an order directing that defendants, and not 'the plaintiff, were entitled to costs, except that the plaintiff was entitled to his costs and disbursements up to July 23, 1891, the date of the service of the offer of judgment herein.
    As appears by the case on appeal, this action was brought for work, labor and services and materials furnished, amounting to the sum of one hundred and twenty-four and eighty-one-hundredths dollars ($124.80), with interest from May 19, 1891. The answer was not served until July 23, 1891, and was a general denial.
    On the same day an offer of judgment was served, offering to allow the plaintiff to take judgment in the sum of seventy-four and eighty-one-hundredtlis dollars ($74.80), with interest from May 19, 1891, together with costs, etc. This offer of judgment was retained by the plaintiff, and never returned on any ground. On the 7th day of December, 1892, an order was made granting leave to the plaintiff to amend his complaint, without prejudice to the pleadings already had, and an amended complaint was served, and on December 2, 1892, another offer of judgment was served, and an answer to the amended complaint was served, admitting the claims set forth in the first paragraph of the amended complaint, amounting to seventy-four and eighty-one-lmndredths dollars ($74.80), and denying as to the second cause of action wherein plaintiff claimed fifty dollars ($50).
    The case was duly tried on December twelfth, and resulted in a verdict in favor of the plaintiff for eighty-one and ninety-one-hundredths dollars ($81.90), the amount claimed in the plaintiff’s first cause of action, and the amount and interest thereon, for which defendants offered judgment, and upon the second cause of action, in a verdict for the defendants.
    On the same day, December twelfth, and after the rendition of the verdict herein, plaintiff’s attorney served a full bill of costs, and also a written acceptance of defendants’ offer of judgment for seventy-four and eighty-one-hundredths dollars ($74.80), and interest, made on December second.
    The plaintiff had his full bill of costs taxed by the clerk at the sum of ninety-six and twenty-five-one-hundreths dollars ($96.25), while the defendants’ attorney had his full bill of costs taxed at seventy and ninety-two-one-hundredths dollars ($70.92.)
    Upon a motion made for a retaxation of said costs, an order was made on December 17,1892, wherein it was,
    
      i “ Ordered. That the defendants herein, and not the plaintiff, are entitled to a bill of costs, which the clerk of this court is hereby directed to tax.
    
      “ It is further ordered that the plaintiff is not entitled to a bill of costs herein, and is only entitled to costs and disbursements up to July 23, 1891 the date of the service of the offer of judgment herein.”
    On 'December 21, 1892, an order was made resettling and amending the above order as follows :
    
      “ It is ordered that the said order be and the same is hereby resettled and amended by inserting therein, after the word on ’ on the eleventh line, the words, ‘ reading the summons and complaint, the offer of judgment, dated July 23, 1891, the answer, the amended complaint, amended answer, the offer of judgment dated December 2, 1892, extracts of minutes, and the acceptance of offer verified on and served on the 12th day of December, 1892.’ ”
    From these orders plaintiff appeals.
    
      Herman Balte, for plaintiff (respondent).
    
      Manrice Meyer, for defendants (appellants).
   McG-owu, J.

The plaintiff had ten days after the service of the second offer of judgment made on December second, wdthin which to serve a written notice of his acceptance of said offer, and upon such acceptance he could have entered his judgment for the amount of his first cause of action, seventy-four and eighty-one-hundreths dollars ($74.80), with interest thereon, and costs up to the time of the offer, without application to the court and without a trial. The case appeared upon the day calendar for December sixth.

Plaintiff answered ready, and insisted upon the case oeing tried, and the case was actually tried on December twelfth, having • appeared daily upon the day calendar, and a verdict was rendered for the plaintiff on his first cause of action, and for the defendants on the second cause of action. The plaintiff, by proceeding to a trial, did not obtain a more favorable judgment than that offered him by the defendants. He evidently delayed the acceptance of the second offer of judgment until his full time for acceptance had expired, and after verdict rendered, trusting to obtain a more favorable verdict than that rendered. In all cases of offer of judgment a plaintiff has ten days wherein to elect whether he will accept it or not, or he may proceed to trial. By proceeding to trial, before his time to accept had expired, he in effect elected not to accept the offer, but evidently intended to take the chances of obtaining upon a trial a more favorable judgment than that offered. We do not think that it was intended by or that it is within the meaning of section 738 of the Code, that a plaintiff should have the right to avail himself of the benefit of an acceptance of an offer of judgment and a trial at the same time.

By electing to bring on the cause for trial before his time to accept had expired, he waived all rights he may have had under the offer.

The plaintiff, not having obtained a more favorable judgment than that offered before trial, is not entitled to, any more costs than he would have been entitled to had he accepted the offer, viz., costs only up to the time of the offer, December second, while the defendants are entitled to costs from that time (December second).

The order appealed from must be modified so as to conform to the above opinion, and as so modified, will be affirmed, with costs.

Ehblioh, Ch. J., and Fitzsimons, J., concur.

Ordered accordingly.  