
    James M. Stillwell, App’lt, v. Benjamin W. Stillwell, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed October 26, 1894.)
    
    Amendment—Oeeeb oe judgment.
    An offer of judgment cannot be ainended after acceptance and payment of the judgment.
    Appeal from an order allowing an amendment of an offer of judgment.
    
      É. pi. & A. J. Prime & Burns, for app’lt; John F. Brennan, for resp't.
   Dykman, J.

This is. an appeal from an order amending the defendant’s offer of judgment, and the judgment entered on such offer, and the acceptance thereof. The complaint in the action alleges that in June, 1875, the grandfather of the plaintiff deposited in the Yonkers Savings Bank $1,500, in the name of Benjamin W. Stillwell, in trust for James M. Stillwell, the plaintiff, and delivered the bank book to the defendant, in trust for the plaintiff; and the defendant agreed to'hold the book, money, funds, and accumulations for the plaintiff, and the understanding was that the money was to constitute a fund whereby the plaintiff would be enabled to build on lands which the grandfather would thereafter give to the plaintiff, and that the principal and accumulations of interest should be paid to the plaintiff when he should arrive at full age; that the plaintiff did arrive at full age on the 8th day of February, 1893; and that thereafter the plaintiff requested and also demanded the money from the defendant and he refused to pay it over. This suit was then commenced, and the defendant answered on May 24, 1893, and the next day served a written offer to allow judgment against him for $3,252.60, and interest at 4 per cent., and costs, which offer was accepted the same day. Judgment was entered on the offer and acceptance. The defendant, after the acceptance of the first offer, discovered what he claims was a mistake, and served a second offer for $100 less than the first, claiming a mistake in that amount, with notice of withdrawal of the first offer. Plaintiff’s attorney then served a notice that the first offer, having been accepted, could not be withdrawn, and called upon the attorney for the defendant to move promptly for the relief to which lie might deem himself entitled. The defendant did not move, and the plaintiff then made a motion at the special term; and, after hearing thereat, an order was made setting aside the service of the first offer, unless the plaintiff should stipulate to reduce the judgment by $100, and granting costs of motion to the plaintiff. The stipulation to reduce the judgment was made and filed. The defendant paid the judgment June 3,1893, and, in July thereafter, claims to have discovered this mistake in the offer, but made no motion to correct it or to obtain any relief until the middle of December, 1893, and then made a motion at the special term to amend the offer and judgment so as to reduce the amount $200, besides the $100 deducted by the stipulation already mentioned, and such an order was made. The plaintiff has appealed from that order, and, in our view, it was erroneous.

The offer and acceptance constituted a contract which the court coqld not set aside on motion. It was equally powerless to order or frame an amendment that would operate to change a contract, without the consent of both parties. The contract made by the offer and acceptance by the parties required the agreement of both parties to make it effectual. The contract became executed when, in the month of June, 1893, the judgment upon the offer and a cceptance was fully paid and satisfied. It is unnecessary to decide here what course should have been pursued on the part of the defendant in case an error had crept into his offer, but the order of the special term compelled the defendant to deduct $200, besides the $100 deducted by the stipulation which the plaintiff made. That is plainly erroneous, and the order should be reversed, with 10 costs and disbursements.  