
    Anton Mazanec, Resp't, v. Manhattan Investment and Construction Company, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Jüdqmbht—Offer.
    Matter contained in an answer, in order to he considered as an offer of judgment, must he accepted within the time limited hy the Code, or it cannot he used upon the trial.
    2. Save.
    Such matter cannot he considered as an admission, where it is not couched in the terms of an admission and is inconsistent with the positive denials contained in the answer.
    3. Same.
    Defendant is not hound hy an offer to compromise until the case is called for trial.
    Appeal from a udgment in favor of plaintiff.
    C. Goldzier, for app’lt; N. A. Alexander, for resp’t.
   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 plaintiff 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 plaintiff 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 plaintiff tendered the contract for cancellation, and the court directed judgment for $145 and interest and $15 costs, to which ruling the defendant duly excepted. 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 discription 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.

All concur.  