
    Watson v. Benz.
    
      (Supreme Court, General Term, Second Department.
    
    December 10,1890.)
    Costs—Oeeeb oe Judgment.
    Under Code Civil Proc. N. Y. § 3053, requiring a justice of the peace to make his return on an appeal “ after ten and within thirty days from the service of the notice of appeal, ” and section 3071, providing that “after the expiration of ten days from the time of filing the justice’s return, the action is deemed an action at issue in the appellate court, ” an offer of judgment, served 12 days after notice of appeal, is not within section 3072, which authorizes such an offer only “after the action is deemed at issue in the appellate court, ” but comes within section 3070, authorizing an offer “within fifteen days after service of the notice of appeal;” and costs, on a judgment less favorable than the offer, are to be taxed under section 3070. Overruling 10 N. Y. Supp. 799.
    Motion for reargument of appeal. See decision on the original hearing, 10 N. Y. Supp. 799. Code Civil Proc. N. Y. § 3053, relating to appeals from justices’ courts, provides that “the justice must, after ten and within thirty days from the service of the notice of appeal, and the payment of the costs and fee, as prescribed in section 3047 of this act, make a return to the appellate court,” etc.; and section 3071 provides that, upon such an appeal, “after the expiration of ten days from the time of filing the justice’s return, the action is deemed an action at issue in the appellate court.”
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      C. A. S. Van Nostrand, for appellant. Harrison S. Moore, for respondent.
   Barnard, P. J.

Dykman, J. The motion for a reargument should be granted, without costs.  