
    Jerome Walsh and Others, as Copartners of the Firm of Walsh Bros. & Co., Respondents, v. Empire Brick and Supply Company, Appellant.
    
      Costs where an action is severed — offer of judgment generally, where two causes of action are stated — effect of an acceptance thereof—relief where the acceptance is inadvertently made.
    
    The complaint in an action set forth two causes of action for the breach of two separate contracts. The answer contained a denial of the facts constituting the first cause of action and admitted the second cause of action. The defendant served with the answer an offer of judgment for the amount demanded in the second cause of action together with costs. Within ten days thereafter the plaintiffs served a written acceptance of the offer of judgment and notice of taxation of the costs. Before the judgment was entered upon the offer the. plaintiffs applied for and obtained an order permitting them to enter judgment on the second cause of action, and to prosecute the first cause of action. Held, that section 511 of the Code of Civil Procedure does not entitle a plaintiff" ' who sues upon several causes of action, one of which is admitted by the answer, to sever the causes of action and to enter judgment for the amount of the; admitted cause of action with costs; the costs are not. allowable unless he elects; not to continue the action as to the remaining causes of action;
    That, assuming that an offer of judgment may be made applicable to one of several causes of action alleged in a complaint, and that upon its acceptance the court may permit the action to be continued as to the remaining causes of action, the plaintiffs in the present case would not come within this principle, as the offer of judgment was not specifically made applicable to any particular cause of action, but was made generally in the action, and that its acceptance; must be deemed a settlement of all damages claimed in the action;
    That the order allowing the continuance of the action as to the first cause of action • ■ could not be permitted to stand on the theory that it operated to relieve the plaintiffs from the consequences of inadvertent or mistaken practice, as the plaintiffs’ attorney swore that he had authority to accept the offer.
    
      Semble, that if it should appear that the plaintiffs’ attorney was not authorized to-accept the offer, as it was construed by the Appellate Division, the Special. Term might grant the plaintiffs relief.
    Appeal by the defendant, the Empire Brick and Supply Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Columbia on the 15th day of October, 1903, granting the plaintiffs" motion to sever the causes of action set forth in the complaint.
    The complaint in this action set forth two causes of action, upon the first of which plaintiffs demanded judgment for the sum of $5,457.80 as damages for an alleged breach of contract. In the-second cause of action plaintiffs demanded judgment for $798.86 as. damages for the alleged breach of another contract, with interest, from October 1, 1902. Defendant interposed an answer containing-denials of the facts alleged as the plaintiffs’ first cause of action, and. admitting the facts alleged as the plaintiffs’ second cause of action. Together with the answer was served an offer of judgment for the sum of $798.86, with interest from October 1, 1902, with costs, "Within ten days thereafter the plaintiffs served upon the defendant, a written acceptance of the offer of judgment and notice of taxation of costs. Thereafter, and before judgment was entered upon said offer, plaintiffs noticed a motion upon the summons and complaint, •■answer, offer of judgment, acceptance, and the affidavit of plaintiffs’ attorney, for an order permitting plaintiffs to prosecute this action uipon the first cause of action set forth in the complaint, and directing that this action be severed pursuant to the provisions of section 511 of the Code of Civil Procedure, and that the said order provide ffhat plaintiffs have leave to enter judgment for the part of plaintiffs’ -claims herein admitted by the defendant to be just and pursuant to «defendant’s offer of judgment herein accepted by plaintiffs, with like «effect as to subsequent proceedings in this action as if it had been originally brought for the remainder of plaintiffs’ claim.
    Upon that motion the defendant appeared and objected that both -causes of action were settled by the plaintiffs’ acceptance of defendant’s offer of judgment. This objection was overruled, and the court at Special Term directed the severance of the action and the entry «of judgment for the cause of action admitted, together with costs, ■with leave to the plaintiffs to prosecute the cause of action first «contained in their complaint. From this order the defendant has appealed.
    
      George Coggill, for the appellant.
    
      D. H. Daley, for the respondents.
   Smith, J.:

Under section 511 of the Code of Civil Procedure upon admission by defendant of the facts constituting the plaintiffs’ second «cause of action, in the absence of an offer of judgment and acceptance thereof, the plaintiffs were entitled to a severance of the action, with judgment. upon the cause of action admitted. Under that section the plaintiffs were not entitled to costs unless they elected •not to continue the action as to the remaining cause of action. (Waite v. Kaldenberg Co., 68 Hun, 528.) The offer of judgment, .however, for the exact amount claimed in plaintiffs’ second «cause of action was an offer of judgment with costs, and has been apparently construed by the Special Term as an offer of judgment upon the second cause of action, and, as such, judgment has «been ordered in accordance with the offer and acceptance. Assuming for the argument that an offer of judgment may be made appli-eable by .the defendant to one of several causes o£ action stated in the complaint, upon the acceptance of which the court would be: authorized to sever the action giving judgment for the amount: offered, and continuing the actions as to the remaining causes of action, this offer of judgment was not by the defendant made applicable to any specific cause of action. It was made generally in. the;action, and the acceptance of the offer must be deemed to be ar.> settlement of all damages claimed in the action directly within the? authority of Shepherd v. Moodhe (150 N. Y. 183). In that case-the head note reads: When, in an action of replevin for the possession of several chattels, the defendant, in his answer, claims, absolute title to some of the chattels and demands judgment therefor, and serves an offer of judgment in favor of the plaintiff for-all the chattels in suit except those claimed in the answer, and thes offer is accepted and judgment entered accordingly, the title- of the? defendant to the chattels claimed in his answer and excepted from? his offer is conclusively established, and the plaintiff is estopped from asserting title thereto in another action of replevin subsequently:-' brought against him by the original defendant to recover possession.-? of such excepted chattels, if retained by the original plaintiff under-his preliminary requisition in the original action.” It would seem? that in the case cited the offer of judgment was as distinct and separable as it could be in any action. If the acceptance of the. offer in that case was a settlement of the entire action and constituted a concession of title in the defendant to the property other than that for which the offer was made, I am unable to see why the: acceptance of the offer in the case at bar is not a complete satisfaction of plaintiffs’ entire claim. The order, therefore, as far as it; authorizes the continuance of the action as to the first cause off action was improperly granted because the cause of action therein? stated had been settled.

if or can this order stand as the granting of relief to the plaintiffs? for inadvertent or mistaken practice. It is apparent that the plaintiffs’ attorney construed the offer of judgment as an offer upon the? second cause of action only, and from the affidavit of plaintiffs"' attorney it appears that such an offer was the one intended to be? accepted. It is difficult to base relief to the plaintiffs, however,, Upon a bare mistake of law as to the effect of the offer of judgment. (See Shepherd v. Moodhe, 150 N. Y. 183; Stilwell v. Stilwell, 81 Hun, 392; Freudenheim, v. Raduziner, 10 Misc. Rep. 500.) These cases seem to construe an. offer of judgment. and its acceptance as an accord and satisfaction. ■ The pldihtiffs’ attorney,

. ¿however, has accepted the offer and has sworn to hi's authority só to «do. It is possible if it should appear that the plaintiffs’ attorney was not authorized to accept the offer as it has now been construed by this court, upon that fact being shown the court might grant the plaintiffs relief in the premises. Without deciding, however, that ¡such facts would authorize relief to the plaintiffs, it is enough to say ■ without.such fact appearing sufficient facts are' not) here shown to authorize the court to relieve the plaintiffs. j

The order must be modified so as to strike therefrom that provision authorizing the continuance of the action as to the first cause ■of action stated in the complaint, and as thus modified should be affirmed, with ten dollars costs and disbursements to! the appellant,

. • ■ • ¡ ■ . ■ All concurred. I

'Order modified so as to strike therefrom any provision authorizing fthe continuance of the action as to the first cause of action stated in "the complaint, and as so modified affirmed, with ten dollars • costs ¡and disbursements to appellant. ;  