
    Safety Steam-Generator Co. v. Dickson Manuf'g Co.
    
      (Supreme Court, General Term, First Department.
    
    October 16, 1891.)
    Costs—Additional Allowance—Offer of Judgment.
    Where defendant, after issue, joined offers to allow judgment for a certain sum and costs, which offer plaintiff accepts, the court has power to make an additional allowance, such allowance being a part of the costs.
    Appeal from special term, New York county.
    Action by the Safety Steam-Generator Company against the Dickson Manufacturing Company, on a contract by which plaintiff licensed defendant to manufacture and sell steam-boilers embodying inventions for which plaintiff owned patents; and by which defendant agreed to pay plaintiff specified royalties, and to use all diligence and energy to make the sales of these boilers as extensive as possible. The complaint alleged that defendant had failed to pay the royalties, had lacked' diligence .in endeavoring to sell the boilers, and had injured the reputation of such boilers by bad workmanship. It asked judgment for $40,000, covering the unpaid royalties and the unliquidated damages for the other breaches of the contract. Defendant offered to allow judgment for $2,000 and costs, under Code Civil Proc. NT. Y. § 738, which provides that in case such offer is accepted judgment must be entered accordingly. Plaintiff accepted the offer, and then moved for an additional allowance, which motion the court refused, and it appealed.
    Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
    
      Parsons, Shepard & Ogden, (H. B. Closson, of counsel,) for appellant. Matthews & Smith, (Frank E. Smith, of counsel,) for respondent.
   Per Curiam.

The motion in the court below was denied. It appeared that after issue joined the defendant served an offer of judgment, which was accepted by the plaintiff, whereby defendant offered to allow judgment for a certain sum and costs. The plaintiff made a motion for an allowance, which was denied by the court because of a supposed want of power. In this we think the court erred. The case of Landon v. Van Etten, (Sup.) 10 N. Y. Supp. 802, seems to be in conflict with this proposition. Although the precise question was not involved, yet it was there held that an allowance was part of the costs, and that a defendant succeeding after an offer, being entitled to costs, was entitled to an allowance. The case of Wing v. De La Rionda, 126 N. Y. 680, 28 N. E. Rep. 223, also establishes the principle that an extra allowance is part of the costs. Therefore, the plaintiff being entitled to costs, the court had power in a proper case to grant an allowance. Our attention has been called to the case of Penfield v. James, 56 N. Y. 659, in which the court seems to have held that, where an insufficient offer of judgment was served, the plaintiff was not entitled to an allowance. We think that either the court must have acted under a misapprehension of the facts, or the case must be incorrectly reported. The order should be reversed, with $10 costs and disbursements, and the plaintiff allowed to renew his motion at special term.  