
    Mock v. Saile.
    
      (Supreme Court, General Term, Fifth Department.
    
    March, 1889.)
    Costs—Who is Entitled to—Oeeeb oe Judgment.
    Code Civil Proc. IT. Y. § 2892, applicable to certain municipal courts, providing that if, after refusing an offer of judgment, plaintiff does not recover a more favorable judgment, he shall not recover costs, does not apply to a case where a plaintiff refused an offer of judgment in the municipal court, and recovered a more favorable one, which, however, was reduced in the county court to the amount of the offer, no offer having been made in the county court.
    Appeal from Monroe county court.
    Action by Lewis Mock against Peter Saile in the municipal court of Rochester.' A judgment for plaintiff for §141.25 was reduced in the county court to $35. Defendant appeals from an order denying a motion for a retaxation of costs.
    Argued before Barker, P. J., and Dwight and Childs, JJ.
    P. H. Hulett, for appellant. 8. B. Bentley, for respondent.
   Barker, P. J.

The defendant appeared in the municipal court on the return of the process, and made a written offer that judgment might be taken against him for $35, with costs, which the plaintiff did not accept. On the trial in the county court the plaintiff had a verdict for $35 only. The right of the defendant in an action in the municipal court to make an offer of judgment is given by section 2892 of the Code of Civil Procedure, and the effect of it is, if the same is not accepted, that the plaintiff shall not recover costs from the time of service of the offer, if he fails to obtain a more favorable judgment. This is the only provision on the subject, and the section of the Code in which it appears is found in chapter 19, entitled “Courts of justices of the peace, and proceedings therein.” This and other sections of that chapter are applicable to actions commenced in the municipal court of Rochester. Ttie appellant insists that this offer was a part of the papers and proceedings properly returned by the justice to the county court, and remains in fail force, and is to be considered and to have the same effect on the question of costs as if made after appeal in pursuance and in compliance with the provisions of section 3070, as amended by chapter 522, laws 1885.* We cannot concur in giving these sections the construction contended for by the appellant. The provisions contained in the said sections as to making offers of judgment are applicable only to actions pending in the courts referred to «respectively. There is nothing in section 3070 indicating that an offer which may have been made in the court below shall remain in force or be of'any avail to the defendant in the action after the same has been removed by appeal to the county court for retrial. It is expressly provided' in that section that “on appeal provided for in this article either party may make an offer of judgment,” clearly indicating that the offer must be an original one; "and, as further indicating that such is the meaning of the section, a right is also given the respondent to make an offer, which he did not have in the court below. The concluding paragraph of the section declares the effect of the omission by either party to malee and serve an offer as provided by that section, and it is expressed in these words, viz.: “Thé party in whose favor the verdict, report, or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal. ” The defendant not having made an offer of judgment in the county court where he demanded a retrial, he is required to pay costs, as the plaintiff had the verdict. The order appealed from should be affirmed, with $10 costs. All concur.  