
    HIBBARD v. RANDOLPH.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    1. Offer of Judgment—Number.
    Code Civil Proc. § 738, which permits a defendant before trial to-serve on plaintiff an offer to allow judgment to be taken against himself in the amount specified, with costs, does not limit defendant to one offer, but he may serve as many offers as he sees fit.
    3. Same—Assignment of Judgment.
    An assignee of a judgment takes it subject to the judgment debtor’s-right to offset against it the costs accrued in his favor under Code Civil Proc. § 738, which provides that where defendant offers judgment in plaintiff’s favor, and plaintiff refuses the same, and fails to obtain a more favorable judgment, plaintiff is liable for the costs.
    Appeal from Chautauqua county court.
    Action by Heman A. Hibbard against John H. Randolph for the conversion of four cows. Judgment was rendered in plaintiff's favor, but from an order directing a new taxation of costs, and from an order setting off a judgment for costs in defendant’s favor against plaintiff’s judgment, plaintiff appeals.
    Affirmed.
    Defendant failed to answer in time, but served an answer about November 2, 1892, and at the same time served an offer of judgment in due form, in amount of $75 and costs. The answer was returned, and the offer not accepted. The defendant moved for leave to answer. The motion was granted, and the case referred to V. E. Peckham, counselor, of Jamestown, to-hear, try, and determine. Again, and on the 14th day of December, 1892, the defendant served upon the attorney for the plaintiff the answer, and at the same time he claimed that he served another offer of judgment in due-form, and this time for the sum of $90 and costs. The case was tried principally upon the question of value, and on the 24th day of January, 1893, the referee appointed to try the matter made and delivered his report, by which he found the cows of the value of $85, January 28, 1892, and allowed to plaintiff interest thereon from that date. Thereupon, and January 30, 1893, the plaintiff entered judgment for $90.10 damages, and costs taxed at $128.76, a total of $218.86, being costs in full, and on the same day left at the office of attorney for defendant, with his clerk, a copy of report and notice of entry of judgment, and notice of relaxation of costs returnable before the county clerk February 4, 1893. Defendant’s attorney claimed that upon the question of costs it would not be proper to compute interest on the $85 past the date of the second offer of judgment, and therefore he should oppose taxation of costs accordingly. The attorney for plaintiff claimed he had no recollection , of second offer being served, and claimed that but one offer could be made. Proof of service of second offer was duly made before the clerk. Objections ■ to all items "taxed by plaintiff after offer was made, and clerk was asked to tax defendant’s costs after date of offer, but he declined to-treat the matter differently than as if no offer had been made, as the questian was new to him, and he proceeded to retax the costs in full. Defendant thereupon moved for a new taxation of costs under section 3265 of the Code. The motion was heard at a county court for said county, March 6, 1893. In the mean time the plaintiff had issued execution, and proceeded to levy upon the property of defendant. The county court, upon such motion, decided that defendant could make more than one offer, provided it complied with the requirements of section 738 of the Code; that the offer of $90 was duly made and served upon plaintiff’s attorney December 14, 1892; that it was more favorable to plaintiff than his recovery; that interest could only be computed to the date of the offer for the purpose of ascertaining which was more favorable; that defendant was entitled to the benefits of section 738, and directed a new taxation of costs in favor of both parties, in which plaintiff should be allowed to tax costs to the date of the second offer, December 14, 1892, only, and defendant be allowed to tax costs from said date, and specifying the proof upon which the items were to be allowed or disallowed; and that any sum deducted by reason of such new taxation be credited upon the execution issued by plaintiff. The defendant served notice of taxation pursuant to said order. The plaintiff appealed from the order without security, and proceeded with his execution until afterwards stayed by the court. The defendant filed proof of the service of the offer, his objections to the items of plaintiff’s costs, his requests that costs and disbursements after date be taxed, all papers used upon said motion, and the order; and upon return of notice for new taxation March 30, 1893, the clerk, pursuant to same, taxed the costs, as directed, for defendant, $120.47, and entered the order, crediting upon plaintiff’s first judgment the amount which plaintiff’s costs as first taxed had been decreased by the terms of said order, viz. the sum of $100.09, which left two judgments in the same action and upon the same report,—one for plaintiff of $118.77, his recovery, and costs to date of offer; and one in favor of defendant, $120.47, his costs and disbursements after date of the offer. The plaintiff having appealed from such order to this court, and having given no security for costs, and without stay, the defendant on proof of all the facts, and of the levy and advertised sale, and the insolvency of the plaintiff, obtained an order of the county judge requiring plaintiff to show cause at a county court, to be held in and for county of Ohautauqua, April 3, 1893, why the judgments entered as per said order made for new taxation should not be offset, and the lesser applied to the payment of the greater, so far as the same would go, and judgment entered in favor of the party having the greater for the difference between the two. "It was upon the return of this order that plaintiff’s attorney made the affidavit in which he claims to have advanced money to his client and taken an assignment of the judgment. The county court, upon hearing the motion, set aside both judgments, and, as plaintiff’s attorney claimed to have paid the referee fees, the court directed that the amount thereof ($24) be deducted from what had already been credited upon the original judgment, and that left a balance in favor of plaintiff, thus leaving the judgment as it would have been had the clerk taxed the costs correctly in the first place. The court further directed judgment for plaintiff for the difference, $22.30, with interest thereon from January 30, 1893, a total of $22.53.
    The opinion of the county court on the motion for new taxation of costs (Van Dusen, J.) is as follows:
    “The county clerk taxed a full bill of costs in favor of the plaintiff. The action was for the conversion of certain personal property. It was referred, and the referee reported for the plaintiff on the 24th day of January, 1893, for the sum of $85.00, with interest from the 28th day of January, 1892. It is conceded by counsel that on the 2d day of November, 1892, the defendant made and served an offer of judgment in the action for the sum of $75.00, as provided by section 738 of the Code. It is further claimed by the defendant that on the 14th day of December, 1892, he made and served a second offer for the sum of $90.00. Plaintiff’s attorney denies the service of any second offer. Neither offer was accepted. The defendant produces upon this motion an offer in due form, made in said action, dated December 13, 3892, for the sum of $90.00, which he swears he served upon the plaintiff’s attorney on the 14th day of December, 1892, in his office at Jamestown. It appears that at the same time the defendant served his answer in the action. The defendant had been in default, and he was, by an order of the court, permitted to make and serve an answer. The defendant’s attorney states that the offer was in duplicate, and that he served the same as stated. It is admitted by the plaintiff’s attorney that he did not inspect the answer served, for the reason that he had already received a copy of the proposed answer in the motion papers. Upon the unequivocal sworn statement of the defendant’s attorney respecting the service of the second offer, I am impressed with the fact that such offer was served, at the time he states. It is fair to assume that under the circumstances Mr. Pickard did not examine the papers left with him, and that the matter of the second offer escaped his notice, and that he has now no recollection that such an offer was ever served. This brings us to the question, what is the rule governing taxation in such a case? The solution of the proposition is to be found in the answer to the following question: Was the offer more- favorable to the plaintiff than the amount found in his favor upon the trial? In substance, the defendant, on the 14th day of December, 1892, offered the plaintiff on account of his claim the sum of $90.00. This the plaintiff refused, and insisted that he was entitled to more. Upon the trial it was found that on the 14th day of December, 1892, his claim, with interest, as found by the referee, amounted to $89.30, this being the sum upon which the offer was made. It seems that the offer was more favorable. The comparison must be made considering the amount of the recovery as of the date of the offer. This seems to be just. Budd v. Jackson, 26 How. Pr. 398, 401; Smith v. Bowers, 3 Civil Proc. B. 72, 74. I am of the opinion that the defendant could serve as many offers as he saw fit, provided that they were within the limit prescribed by section 738. The statute should be construed having in view the object intended, thus giving the defendant an opportunity to satisfy the plaintiff’s claim, and avoid further litigation. There should be a new taxation before the county clerk in favor of each of the respective parties, wherein the plaintiff should be allowed to tax the costs prescribed by law to the time of the service of the second offer, December 14, 1892, and the defendant should be allowed to tax costs in his favor accruing thereafter, as provided by section 738 referred to. Any sum deducted on account of such new taxation under this order, is to be credited upon the execution issued herein to enforce the judgment. The defendant should have $10.00 costs of this motion.”
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and" BRADLEY, JJ.
    A. C. Pickard, for appellant.
    J. D. Curtiss, for respondent.
    
      
       This section provides: “The defendant may, before the trial, serve upon the plaintiff’s attorney, a written offer, to allow judgment to be taken against him for a sum, or property, or to the effect, therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken. If the plaintiff, within ten days thereafter, serves upon the defendant’s attorney, a written notice that he accepts the offer, he may file the summons, complaint and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If notice of acceptance is not thus given, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time.”
    
   LEWIS, J.

The defendant unquestionably had the right to serve the second offer of judgment. The county court upon conflicting affidavits decided that the defendant did serve a second offer •of judgment for the sum of $90, which was for a greater amount than plaintiff’s recovery, and thereforé the defendant was entitled to costs accruing after service of that offer. In tailing an assignment of plaintiff’s claim the attorney took it subject to the right of the defendant to offset the costs to which he might be entitled against the plaintiff’s judgment in whosoever hands it might be. Were the rule otherwise, the provision of the Code providing for offer of judgment would be practically ineffectual and nugatory. Warden v. Frost, 35 Hun, 141. The orders appealed from should be affirmed, with $10 costs and disbursements. All concur.  