
    ABRAHAM S. HERMAN, Respondent, v. HERMAN LYONS, Appellant.
    
      Off&i' of judgment — tidal of aetion before eeepiration of ten days— Oosts — Code, § 385.
    After issue had been joined in this action, and on the seventh of February, an offer to allow judgment to be taken against him was served by the defendant; on the ninth of February the cause was regularly called in its order on the calendar, an inquest taken therein, and the costs accruing subsequent to the offer taxed in plaintiff’s favor. Held,, that, as ten days had not elapsed from the service of the offer of judgment to the time of trial, the plaintiff was entitled to disregard the offer and to tax the costs thereafter accruing.
    Appeal from au order confirming an adjustment of costs by tbe clerk of tbe court.
    --, for tbe appellant.
    
      Simon H. Stern, for tbe respondent.
   Brady, J.:

Tbe defendant served’ an offer to allow a judgment to be'taken against him. Tbe service was made on tbe seventh February last. On tbe ninth tbe cause was regularly called in its order and an inquest taken, and tbe costs which accrued subsequent to tbe offer were taxed in plaintiff’s favor. If tbe offer served stayed tbe plaintiff’s proceedings, or imposed any obbgation upon him to act in reference to it at once, it might be said that be was not entitled to any indemnity for such subsequent proceedings. He owed no duty to tbe defendant, however, under tbe three hundred and eighty-fifth section of tbe Code; tbe plaintiff has, in all such cases, ten days to elect whether be will accept tbe offer or proceed to trial; and if tbe offer be served so late tbat tbe cause is reached and tried before tbe expiration of tbe ten days, tbe offer is unavailable to tbe defendant. (Pomeroy v. Hulin, etc., 1 How. Pr. R., 161; Walker v. Johnson, 8 id., 240 ; Lunker v. Richnagel [decided in tbis court February 25, 1859].) Tbe plaintiff herein, not having the ten days prior to tbe call of tbe cause in its regular order, was not obliged to pay any attention whatever to tbe offer. He could treat it as a nullity, which be did do, and proceed with bis action.

If tbe rule were otherwise, tbe service of an offer made when tbe cause was on tbe day calendar would prevent tbe plaintiff from proceeding to judgment, and might compel him to lose tbe term. Tbe adjustment and tbe order confirming it were right, and tbe appeal is of no benefit to tbe defendant.

Order appealed from affirmed, with ten dollars costs and tbe disbursements of tbe appeal.

Daniels, J., concurred. Davis, P. J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  