
    James Singleton, Resp’t, v. The Home Ins. Co. of New York, Impl’d, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 26, 1890.)
    
    1. Costs—Judgment, offer of—When judgment less favorable than OFFER.
    Plaintiff was insured with defendant for $1,350. Of this $250 was on personal property to his own benefit, and $1,100 was payable to one Coit, as his mortgage interest might appear. A fire occurring plaintiff brought súit and defendant claiming that Coit was interested, the latter was served and put in an answer claiming $536 with interest. Defendant had made an offer of $645.30 and interest, with costs of the action. The trial judge found that plaintiff’s loss was $520 on the real and $100 on the personal, and ordered two separate judgments, viz.: $113.33 and costs, and $520.30 and interest from- February 4, 1887, and costs. Meld, that the offer was more favorable than the judgment obtained, as the costs of the Coit judgment could not properly be added to the two recoveries.
    2. Same
    The directions of the statute are explicit, and refer to actions which are in the nature of equitable actions as well as to actions at law.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff and order denying motion for new trial.
    
      I. N. Ames, for app’lt; Wm. H. Oilman, for resp’t.
    
      
       Reversing 29 N. Y. State Rep., 998.
    
   Peckham, J.

The plaintiff was insured in the defendant’s company to the amount of $1,350, The insurance was for $1,100 on the real estate and $250 on personal property. The loss, if any, occurring on the real estate was, by the terms of the policy, payable to defendant, James E. Coit, as his mortgage interest therein should appear. The plaintiff sustained a loss by fire. The amount of the loss on the personal property was conceded to be $100, and no one but the plaintiff had any interest in its payment. In regard to the real estate, the plaintiff claimed a larger loss than the defendant admitted. Hence this action. The defendant alleged as a defense that the mortgagee, Coit, had an interest in the subject-matter of the action, and must be served with process in order to a complete determination of the questions to be litigated. Thereupon the defendant Coit was served with process and put in an answer claiming that out of the amount paid by the company defendant, he, Coit, should receive an amount sufficient to pay his mortgage interest in the premises, which he claimed was $536, with interest on $500 from April 9, 1887. "The trial judge, before whom the case was tried without a jury, found that plaintiff’s total loss on the real estate was $520.30, and on personal property $100. The amount of defendant Coit’s claim under his mortgage was $544.74. The plaintiff had claimed that his loss on his real estate was greater than the amount found by the judge. The insurance company had served upon plaintiff, after the commencement of the action, an offer in writing to allow judgment to be taken against it for the sum of $645.30, and interest from January 14, 1887, with the costs of the action.

The trial judge ordered two separate judgments in the case against the company defendant, one in favor of plaintiff for $100 and interest (in all $113.33), together with costs; the other judgment in favor of defendant Coit for $520.30 damages and interest from February 4, 1887, with costs. The insurance company claimed that its offer to the plaintiff to take judgment was more favorable than the judgment actually recovered against it, excluding the costs of defendant Coit, which plaintiff claimed should be added to the two recoveries in order to determine the question whether he had obtained a more favorable judgment than that which was offered by the company defendant. If the costs of Coit ought properly to be added to the two recoveries, it is conceded that the sum exceeds the sum for which the company defendant offered the plaintiff to allow judgment to be taken against it; otherwise not

The section of the Code relative to offers of judgment, so far as material, reads as follows: “ The defendant may, before the trial, serve upon the plaintiff’s attorney a written offer to allow judgment to be taken against him for a sum, or property, or to the effect therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants against whom a separate judgment may be taken.”

The defendant Coit was a party simply to ascertain the amount of his interest in the policy as measured by his mortgage interest in the property which was the subject of the loss. Ño judgment was sought against him by the plaintiff or by the company defendant. But a separate judgment might be taken against the insurance company, and as between it and the plaintiff it could make an offer of judgment. We think it was not bound, at the peril of paying subsequent costs, to include in its offer the costs of the action which Coit might recover against it; and the plaintiff was not justified in adding such costs to the amount of his recovery and that of Coit against the company for the purpose of determining the question whether he had obtained a more favorable judgment than the one offered by the company. Those costs had nothing to do with the judgment which plaintiff obtained. He procured judgment for his claim of loss by fire to the extent of $100 and interest The defendant Coit procured judgment for the extent of plaintiff’s loss by fire upon the real estate and interest. Both these amounts added together are less than the amount of the offer of the company.

The offer included the plaintiff’s costs up to the time of the service of the offer. The plaintiff was not entitled to recover costs for Coit, nor has he done so. The company defendant was not bound to pay plaintiff the costs of defendant Coit. It did not offer, nor has it been adjudged so to do. In no aspect of the case can it be said that the plaintiff has obtained, through the continued litigation, as much as the company offered him by its written offer for judgment The fact that Coit was also granted, as against the company defendant, costs in his judgment, had no effect upon the amount of the plaintiff’s claim, fior upon the question whether the plaintiff had obtained a more favorable judgment than the company 'defendant had offered. The: plaintiff has neither recovered costs from the company defendant for Coit," nor has he been adjudged to pay any. 1 “

We think that the defendant was entitled to its costs against plaintiff, arising subsequent to the. offer, tin the ground that the plaintiff failed to obtain a more favorable judgment than was offered him. We also think that the directions of the statute are explicit, and that they refer to actions which are in the nature of equitable actions as well as to actions at law.

The company has not waived any of its rights, and the offer was served upon the proper parties and was properly made

The orders appealed from should be reversed, and an order made granting the company defendant’s motion to tax its costs in the action against the plaintiff from the time of the service of the offer, together with its costs in this court: and -in the court below upon this motion.

All concur, except Andrews, J., absent  