
    Anton Mazanec and Annie Mazanec, Respondents, v. Manhattan Investment and Construction Company, Appellant.
    
      Offer to compromise contained in the answer—: not a basis for a judgment.
    
    In an action brought to recover moneys paid upon a contract and damages for false representations in regard to it, the defendant admitted the contract, denied the representations, alleged an offer to rescind and that the offer had been declined. The answer further stated that the defendant was willing to restore ' to the plaintiff the amount paid provided the contract was canceled, and he fifteen dollars costs, offered to repay the money if the contract was delivered to him for cancellation. When the case came on for trial the plaintiff tendered the contract for cancellation and the court gave judgment for the amount which he had paid and for
    
      Held, that there was no authority for such a judgment;
    That, if the matter contained in the answer was to he considered as an offer of judgment, the offer not having bgen accepted could not be used upon the trial;
    That the matter contained in the answer could not be considered as an admission for the reason that it was inconsistent with denials contained in the-answer; That it might perhaps be deemed an offer of compromise, but could not in any view be made the basis of a judgment.
    Appeal by the defendant, the Manhattan Investment and Construction Company, from a judgment of the-Superior Court of the city of New York in favor of the plaintiffs, entered in the office of the clerk of said court on the 15th day of April, 1895, upon the decision of the court rendered after a trial at a Special Term thereof.
    
      G hartes Gold-zier, for the appellant.
    
      Nestor A. Alexander, for the respondents.
   Van Brunt, P. J.:

.This action was brought to recover moneys paid on a contract, and damages to the amount of. $1,000 for false representations in

respect thereto. The defendant answered admitting the execution of a contract, denying the representations and that the plaintiffs relied upon them, and alleging an offer to rescind the contract, which was declined. The answer further stated that the. defendant was willing to restore to the plaintiffs the amount paid, to wit, the sum of $145, upon the cancellation of the contract, and thereby offered to repay the same upon delivery up for cancellation of said last-mentioned contract. Upon the issues thus formed the case came on for trial, and the plaintiffs tendered the contract for cancellation, and the court directed" judgment for $145 and interest and $15 costs; to which ruling the defendant duly e.xcepted. From the judgment thereupon entered this appeal is taken.

We do not see what authority .there existed for the. action of' the court which resulted in this judgment. If the matter contained in the answer is to be considered as an offer, such offer not being accepted within the time limited by the Code, it could not be used upon the trial. It cannot be considered as an admission, because it is not couched in the terms of an admission and is inconsistent with the positive denials contained in the answer. The most that could be claimed for this allegation in the answer is that it was an offer of compromise — that the defendant, without further litigation,, was willing to settle the case upon the terms mentioned in the answer. By such an offer the defendant was not bound until the case was called for trial. There seems to be no theory upon which a tender of payment of this description can be made the basis of a judgment, . It is not an admission of anything, due or of any liability which could form the subject of a judgment.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

"Williams, Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.  