
    The United States Mortgage & Trust Co., as Trustee, etc., Appellant, v. John Melbourne Hodgson, Respondent.
    (City Court of New York, General Term,
    July, 1899.)
    Offer of judgment — A counterclaim, served after offer and before a subsequent acceptance, is ineffectual.
    A plaintiff has ten days in which to accept an offer of judgment, and, if he accepts it within that period, the subsequent service by the defendant, during the same period and before entry of judgment, of an answer setting up a counterclaim, is ineffectual to prevent the plaintiff from entering judgment in the full amount of the offer.
    Appeal from an order awarding the defendant-respondent judgment on a counterclaim in default of a reply or demurrer thereto, and vacating a judgment entered herein by the plaintiff-appellant upon an offer and acceptance of judgment, unless the appellant stipulated to deduct from said judgment the amount of the defendant’s counterclaim.
    Rollins & Rollins (Jordan J. Rollins, of counsel), for appellant.
    Joseph A. Arnold, for respondent.
   Schuchman, J.

The plaintiff brought an action against the defendant to recover $109.10 for water rents alleged to be owing by the defendant to an estate of which the plaintiff is the substituted trustee. On February 6, 1899, the defendant served an offer of judgment for $96.75, with interest from the 28th of July, 1898, and costs. On February tenth, the defendant served an answer containing a counterclaim for $12.35, with interest from November 27, 1897. On February fifteenth, the plaintiff served a notice accepting said offer of judgment, and the following day, February sixteenth, entered judgment thereon entirely ignoring defendant’s counterclaim. On plaintiff’s failure to reply or demur to said counterclaim, the defendant obtained an order to show cause why he should not have judgment by default on said counterclaim, and why the judgment entered by the plaintiff should not be vacated and the judgment for the proper amount entered. This motion was granted, and from the order entered thereon this appeal is taken.

Section 738 of the Code of Civil Procedure 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 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.” The offer is to be construed as an offer in the action, at the time it was served, in its then condition. Section 738 grants plaintiff ten days time of acceptance of offer. When plaintiff accepts the offer, it in legal effect relates back to the time of service of the offer. Plaintiff, pursuant to the above section, may then file the summons, complaint and offer and proof of acceptance, and thereupon the clerk must enter judgment accordingly, and the defendant’s answer, although timely interposed, after the service of the offer of judgment, but before the acceptance thereof, becomes a nullity. Defendant had a right to interpose his answer herein, when he did do so; but in law, it was only provisional. If plaintiff did not accept the offer, then the answer stood as a valid pleading in the action and the issues raised thereby proceeded to trial; but if plaintiff did accept the offer, then the answer became a nullity in this action. Tompkins v. Ives, 36 N. Y. 75; Kautz v. Vanderburgh, 77 Hun, 591. All the precedents cited by the attorneys in their respective briefs, the fact was that the offer was not accepted. Ho case is cited where the offer was accepted, as in this action.

Order appealed from reversed, with ten dollars costs and disbursements, and motion to vacate judgment entered herein on February 16, 1899, etc., denied with ten dollars costs.

The judgment vacated is reinstated, and the order to the clerk to cancel the record of the judgment is vacated, and any judgment on defendant’s counterclaim is vacated.

Hasoall, J., concurs.

Order reversed, with ten dollars costs. Motion to vacate denied, with ten dollars costs.  