
    Loren L. Tompkins, Respondent, v. Titus Ives, Appellant.
    The right oft plaintiff to costs, where an offer of judgment under the Code has not been acepted, depends on the recovery of a judgment more favorable to him than ie offer.
    Though ten ays are allowed for the acceptance of such offer it has relation, whether ibe accepted or declined, to the condition of the cause at the time it is serví.
    If, subseqwt to the offer, a counter claim is pleaded, proved and allowed in the judgent, its extinguishment is to be deemed beneficial to the plaintiff to the ejnt of the amount so allowed.
    Appe, from the Supreme Court. The action was for work, la>r and services, and board and lodging furnished to the Cendant and his servants. The plaintiff recovered $69.80. There was no appeal from the judgment to the GeneraTerm. The appeal to this court is from the judgment aSpecial Term on the findings of the referee, and from aiorder at the General Term, affirming an order awardirfull costs to the plaintiff.
    The pellant claimed that he had made an offer more favoralto the plaintiff than the judgment recovered, and that h<as entitled to the costs which accrued - subsequent to the Ir. The material facts were these:
    Thejnplaint alleged the facts on which the plaintiff based .claims, and no facts showing the existence of any counte:aim.
    Forays before the answer was interposed, the following offer werved: “ The defendant herein offers to allow the plainti: take judgment against him in this action for $70, besidests and disbursements. Watertown, Jan. 31,1865.” This ó was not accepted. On the 3d of February, the defendserved his answer, setting up, among other things, counteims for goods sold and services rendered.
    Thevee found, as matter of fact, that the demands of the plsf established on the hearing were $336.40 ; that the ant of the defendant’s .payments and cotinter claims was $268.61; and that the plaintiff was entitled' to judgment for the balance, $67.79, with interest, amounting in all to $69.80, and for that amount judgment was émered. The counter claims allowed by the referee embraced, among.other things, the value of corn, butter, and other artides sold by the defendant to the plaintiff, amounting to $37 so that, if this allowance'had not been made, the recovery muid have largely exceeded the sum named in the offer.
    •. The clerk adjusted the costs on the theory tho the judgment was less favorable to the plaintiff than the ffer. The court ordered a re-taxation with an allowance of ill costs to the plaintiff; and this order was. affirmed on apiol to the General Term in the "fifth judicial district, Te case is reported .in 30 How., 13.
    
      Brown & Beach, for the appellant.
    
      Moore & McCatin, for the respondent.
   Porter, J.

The import and effect of the of must be determined by the condition of the pleadings ate time it was made. It did not mean one thing then i another four days afterward. The answer was not desigf to vary the terms of the previous proposition^ but to ta issue on the plaintiff’s demand, and to introduce cross-cns on the part of the defendant, for the purpose of reducinr defeating a recovery,, if no. notice was given within bten days allowed by law. The intermediate pleading is,. in its nature, provisional; and a notice of acceptor whether served on the first or the tenth day, could applily to the original offer. It would operate upon the plaif’s claim, but not upon'independent causes of action exisl in favor of the. defendant. The litigation resulted inrecovery, more favorable to the plaintiff than the offer, r nominal amount was less than the sum proposed; but iiermining the right to costs, the plaintiff is entitled to benefit of the counterclaims which the defendant afterwfiected to interpose, and which are now extinguished by udgment. ■ (Code, § 385; Fieldings v. Mills, 2 Bosw., 48 Guggles v. Fogg, 7 How., 324; Budd v. Jackson, 26 id., 401; Schneider v. Jacobie, 1 Duer, 694.)

The judgment should be affirmed.

Bocees, J., also read an opinion for affirmance. All the judges concurred except Hunt, J., who was for reversal.

Judgment affirmed.  