
    Edward A. Rollins, Surviving Partner, etc., Appellant, v. Everett Barnes, Respondent. Edward A. Rollins, Surviving Partner, etc., Respondent, v. Everett Barnes, Appellant.
    
      An offer of judgment in a mortgage foreclosure suit ■—when it must authorize a personal judgment to he entered.
    
    The provisions o£ section 738 of the Code of Civil Procedure, relating to offers of judgment, apply to an action brought to foreclose a mortgage.
    An offer by a defendant “to allow judgment of foreclosure and' sale for §2,000, with interest from October 1st, 1888, with costs, to be taken against him,” does hot permit the entry of a personal judgment against such defendant, and where the plaintiff is entitled to sucli personal judgment, the offer, if not accepted, is not effective to give the defendant the costs thereafter accruing.
    Cross-appeals by the plaintiff, Edward A. Rollins, and by the defendant, Everett Barnes, from an order of the Supreme Court, made at the Kings County Special Term bearing date the 26th day of November,-1897, and entered in the office of the clerk of the county of Richmond, directing a retaxation of costs “ by allowing to plaintiff his statutory costs up to the time of the receipt by him of the offer to allow judgment against defendant, together with one-half of the statutory allowance herein, besides his disbursements, less the amount of defendant’s disbursements on the appeal herein, and that the judgment herein be amended by inserting the amount of the costs as so retaxed in the place and- stead of the amount of costs as heretofore taxed, and mentioned in said judgment.”
    
      Louis Wertheimer, for the plaintiff.
    
      Henry Parsons, for the defendant.
   Hatch, J.:

When the appeal from the judgment was before us the record did not contain the offer of judgment, and its effect was not, therefore, considered. The action, although to foreclose a mortgage, is subject to the provisions of section 738 of the Code of Civil Procedure. If the defendant’s offer was broad enough to have entitled the plaintiff to the usual judgment' of foreclosure and sale for the amount of the offer, and judgment for any deficiency arising upon the sale, then, upon refusal to accept it, the defendant became entitled to costs, and the court was without any discretionary power in the premises. (Lumbard v. Syracuse, B. & N. Y. R. R. Co., 62 N. Y. 290; Bathgate v. Haskin, 63 id. 261; Singleton v. H. Ins. Co., 121 id. 644.)

The offer served in the casé is in the following form, omitting the title : The defendant, Everett Barnes, hereby offers to allow judgment of foreclosure and sale for $2,000, with interest from October 1st, 1888, with costs, to be taken against him herein.” The offer was dated, signed and evidenced in the usual form. The judgment demanded in the complaint was for the foreclosure of the mortgage and judgment for any deficiency in the usual form. This was the judgment to which the plaintiff was entitled. The offer limits the judgment to the single right of a foreclosure and sale of the mortgaged premises. It does not authorize, nor could the court authorize, a judgment for anything else. The action was upon the bond as well as to foreclose the mortgage, and the plaintiff was entitled thereby to the personal liability of the defendant as well as the security of the land. If the offer was accepted, the plaintiff thereby released the personal liability of the defendant. This he was not called upon to do, even though he was not entitled to enforce liability for a sum greater than the amount of the offer.

, The offer which may be served under the Code must be to the effect that the defendant will allow “judgment to be taken against him,” and, ivhere a personal .judgment is authorized by the form and character of the action, the offer must conform thereto and authorize the entry of such a judgment. In Bettis v. Goodwill (32 How. Pr. 137) it was said by Mr. Justice Daniels : “ To promote the object designed to be accomplished by the offer, it should be required to be couched in clear and explicit language, leaving no reasonable grounds for controversy or misunderstanding respecting the relief proposed by it or the judgment the party would be entitled to enter upon the acceptance of it. * * * These offers should be construed most strongly against the party making them, for they are always made in language of his own .selection. But, when so construed, if the offer still proves to be so ambiguous, uncertain or indefinite as to leave it doubtful whether it includes an offer of all the relief, the' party receiving it is justly entitled to recover, the party serving it has no good ground of complaint if he is afterwards compelled to pay the costs of a litigation which he had it in his power to avoid by merely using language so plain as clearly to comprehend all that the other party was entitled to demand.”

The offer in this case falls short of this requirement, and was, therefore, without effect. That no question may hereafter arise, it is proper that we should state that the effect of our former decision is to reduce the amount of the extra allowance in an amount proportioned to the reduction of the recovery.

. The order should be reversed, with ten dollars costs and disbursements to plaintiff.

All concurred.

Order reversed, with ten dollars costs and disbursements to the plaintiff.  