
    Charles W. Pike, Appellant, v. Wallace Johnson, Respondent.
    Where an appeal has been brought to the County- Court from a judgment of a court of a justice of the peace under section 371 of the Code, and plaintiff has served an offer to reduce the judgment to a certain amount, which is not accepted, interest added by a jury or by the court to the damages cannot be estimated, in determining whether the judgment in the County Court is more favorable to the appellant than the offer of respondent, and if the damages not including the interest would warrant a judgment more favorable to the defendant by more than ten dollars than the unaccepted offer of plaintiff, defendant is entitled to costs.
    (Submitted November 21, 1871;
    decided December 12, 1871.)
    Appeal from an order of the General Term of the Supreme Court of the eighth judicial district, affirming an order of the Erie County Court, setting aside taxation of appellant’s costs and ordering taxation of respondent’s costs. Plaintiff served an offer that judgment be reduced to fifty dollars, which was not accepted. The facts sufficiently appear in the opinion.
    
      Humphrey <£> Lockwood for appellant.
    In determining whether recovery is more favorable than offer, defendant’s disbursements and costs in justice’s court should be deducted from offer. (Ponto v. Phelps, 36 How., 19; Baldwin v. Brown, 37 How., 385.) In determining which is most favorable, interest will be added to offer only when the party recovering is entitled to interest as an absolute right. (Budd v. Jackson, 26 H. P. R., 399 ; Smith v. May, 32 H. P. R., 224; 37 H. P. R., 385.) The damages sought to be recovered here belong to the class that do not draw interest as an absolute right. (20 N. Y., 469 ; 3 Cow., 393; 5 Cow., 587; Passage v. Thorburn, 34 N. Y., 634.)
    
      H. O. Pay for respondent.
   Per Curiam.

The plaintiff recovered a judgment in a court of a justice of the peace for eighty-four dollars. The defendant appealed to the County Court, under the 371st section of the Code, and stated in his notice of appeal that the judgment ought to have been for six dollars instead of eighty-four. The plaintiff) under the same section, served an offer that the judgment be reduced to fifty dollars. This offer the defendant did not accept. The action, after the lapse of nearly six years, was tried in the County Court, and the plaintiff obtained a verdict of fifty dollars damages. But the jury in arriving at the amount of the verdict, allowed the plaintiff interest for that time. Such is the conclusión to be arrived at, from the affidavits of the parties. That interest amounted to fourteen dollars and fifty-four cents, which sum deducted from the verdict would give the plaintiff a recovery of but thirty-five dollars and forty-six cents, which would, warrant a judgment for him in the appellate court more favorable to the defendant than the unaccepted offer of the plaintiff by more than ten dollars, and would entitle the defendant to recover costs.

We hold that the defendant was entitled to recover costs. We hold that in such a case interest added by a jury or by the court to the damages found cannot be estimated in determining whether a judgment is more or less favorable to the appellant than the offer of the respondent. We do not enter into any discussion of the question. The reasons given in the opinion delivered by Mr. Justice Daniels, in the court below, for the order appealed from are entirely satisfactory. The order of the General Term and of the Erie County Court should be affirmed, with costs to the respondent.

All concur.

Order affirmed.  