
    Oliver M. Warner v. Francis G. Babcock.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Costs—Offer of judgment—Trial.
    Under Code Civ. Proc. § 1018, authorizing the referee, “ on the trial” of an issue of fact, to allow amendments of pleadings, an amendment can only be allowed after commencement of the trial, and therefore an offer of judgment, not made until after allowance of an amendment, is not made “before the trial” (Code Civ. Proc. § 738), so as to enable defendant to escape liability for further costs if a more favorable judgment is not recovered by plaintiff. Ward, J., dissenting.
    Appeal from special term, Steuben County.
    Action by Oliver I\I. Warner against Francis G-. Babcock. From an order denying a motion for retaxation of costs, and to allow defendant certain costs to which he claims to have become entitled subsequent to the making of an offer of judgment, defendant appeals.
    The opinion of Mr. Justice Werner was as follows :
    Defendant’s right to a retaxation of' plaintiff’s costs and to an allowance of costs on his oavu behalf depends upon the question whether the trial of this action Avas actually commenced before the referee on the 1st day of February, 1894. If it Avas not actually commenced at that time, then defendant’s offer of judgment made on the 14th day of February, 1894, Avas perfectly good, and he is entitled to have his motion granted. If, on the other hand, the trial Avas commenced on said date, then defendant’s offer Avas a nullity, and the plaintiff’s counsel had a right to treat it as such, and to tax a full bill of costs. There is really no substantial dispute as to Avhat took place before the referee. It appears that a question arose as to the sufficiency of defendant’s pleading. He desired an amendment, but Avas in doubt whether the referee had the power to grant the same, or Avhether it Avould be necessary to make a motion before the court at special term. The referee resolvéd this doubt in defendant’s favor by asserting the right to grant the amendment, and this position was acquiesced in by counsel for the plaintiff. The amendment was therefore made, and an adjournment of the cause was taken, upon defendant’s motion, to the 27th day of February, 1894.- The plaintiff recovered judgment for a less sum than that stated in defendant’s offer of judgment, and, if his offer is held good, plaintiff Avas not entitled to the costs which accrued after the offer was made, and defendant is entitled to tax costs from that time. As stated before, the question Avhether the offer is good depends upon the question whether the trial Avas commenced before the referee on said 1st day of February. I am inclined to think that the trial Avas commenced. The referee had no power to grant an amendment until the case was moved before him. Code Civ. Proc. § 1018, gives a referee the right to exercise, upon a trial before him, the same poAver as the court “to alloAV amendments to the summons or to the pleadings.” The right of a referee to grant a motidn to amend pleadings in a case pending before him is derived from this statute. He has no poAver to consider or determine such a motion until the action is before him. By the very language of this statute, his poAvers are limited to proceedings “ upon the trial of an issue of fact.” The trial having been commenced, the offer which Avas made did not conform to the practice prescribed in section 738, Code Civ. Proc., which has been construed to mean that the offer must be made at least 10 days before the time of trial. Herman v. Lyons, 10 Flun, 111. The offer made and served by the defendant being a nullity, the plaintiff’s counsel had a right to disregard it. Sares v. Matthews (Sup.), 15 N. Y. Supp. 510. The plaintiff’s counsel Avas not bound to return it. Walker v. Chilson, 65 Hun, 529 ; 48 S. R. 203. Defendant’s motion for a retaxation of plaintiff’s costs and a taxation of his own costs must, therefore, be denied, with $10 costs of this motion.
    Dolson & Dolson, for appellant; De Merville Page, for respondent.
   PER CURIAM.

—Order affirmed, with $10 costs and disbursements, on the opinion of WERNER, J., delivered at special term. Decision made by the concurrence of HARDIN, P. J., and FOLLETT, ADAMS, and CREEN, JJ. WARD, J., dissenting.  