
    Sares v. Matthews.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1891.)
    •Costs—Taxation—Offer of Judgment.
    Code Civil Proc. N. Y. § 738, provides that defendant may, before trial, serve a written offer of judgment on plaintiff, which plaintiff may, “within ten days thereafter, ” accept by serving notice thereof on defendant, and, in default of such acceptance and the recovery of a greater sum than that offered, plaintiff cannot recover costs from the time of the offer. Held, that defendant was not entitled to the benefit of such provision where his offer was served less than 10 days before the trial.
    Appeal from Rockland county count.
    Action by Aaron R. Sares against John W. Matthews. From an order denying a motion for the relaxation of costs defendant appeals. Code Civil Proc. -FT. Y. § 738, provides that “the defendant may, before the trial, serve upon the plaintiff’s attorney a written offer to allow judgment to be taken against him tor a sum * * * 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. * * * 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.”
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Arthur S. Tompkins, for appellant. Abram A. Demarest, for respondent.
   Dykman, J.

This is an appeal from an order of the county judge of Rock-land county, denying a motion made by the defendant for a retaxation of the ■costs in this action, and we think the appeal is destitute of merit. The offer for judgment was not served 10 days before the trial, and the plaintiff was not, therefore, forced to an election, as he was entitled to 10 days within which to accept the offer. The order should be affirmed, with $10 costs and ■disbursements. All concur..  