
    Aaron R. Sares, Resp’t, v. John W. Matthews, App’lt.
    (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Costs—Offer of judgment.
    Where an offer of judgment is served within ten days before the trial the plaintiff is not forced to an election but is entitled to costs, although he recovers a less sum than that offered.
    Appeal from order of the county judge of Rockland county, denying motion for re-taxation of costs.
    The facts appear fully in the opinion of the county judge, as follows:
    Weiant, J.—This is an original action in this court. On March 7, 1890, the defendant by maü served upon the plaintiff’s attorney a written offer under § 738 of the Code of Civil Procedure to allow judgment to be taken by the plaintiff for the sum of $75 and costs. This offer was not accepted. On March 17th the cause was tried and a verdict of $50.03 rendered for the plaintiff. The plaintiff presented to the county clerk and had adjusted and allowed full costs of trial and entered judgment accordingly for such costs and the amount of the verdict The defendant now moves to set aside the judgment and taxation of costs on grounds of irregularity and -that the defendant was entitled to costs subsequently to the offer.
    I am of the opinion that the motion must be denied.
    The plaintiff was entitled to ten days within which to accept . the offer. Code, § 738. .
    
      A defendant cannot prevent a plaintiff from recovering costs of trial by serving an' offer within ten days before trial. Herman v. Lyons, 2 Abb. N. C., 90. An offer served within ten days of such trial cán be treated as a nullity and full costs will be allowed as if no offer had been made. Ibid; Pomeroy v. Hulin, 7 How., 161.
    It seems that under § 798 of the Code, the offer having been served by mail, the plaintiff’s time to accept would have been twenty. days, but if that were not so, the trial on March 17th deprived the plaintiff of full ten days within which to accept before trial, and this, as we have seen from authority, renders the offer ineffectual.
    What effect the service of the second offer and amended answer had upon the first offer it is unnecessary to determine; assuming the first to have remained in force and effect, still the plaintiff as appears was entitled to all costs of the action.
    The taxation of full costs and entry of judgment therefor in favor of the plaintiff was correct. The motion is therefore denied, but under all the circumstances without costs of this motion.
    
      Arthur S. Tompkins, for app’lt; Abram A. Demarest, for resp’t.
   Dykman, J.

—This is an appeal from an order of the county judge of Rockland county, denying a motion made by the defendants 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 ten days before the trial, and the plaintiff was not therefore forced to an election, as he was entitled to ten days within which to accept the offer.

The order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.  