
    The New York, Pennsylvania & Ohio Railroad Co. v. Clark et al .
    
      Action for money-^-Defendant's offer to confess judgment refused— Plaintiff fails to recover more than offered — Defendant entitled to costs.
    
    Where one of several defendants in an action for money only, offers to confess judgment for a certain sum under section 5140, Revised Statutes, and such offer is not accepted, and the plaintiff fails to recover more than was offered, such defendant is.entitled to judgment against plaintiff for his costs from the time of such offer.
    (Decided April 28, 1896.)
    Error to the Circuit Court of Medina county.
    Harriet A. Clark, plaintiff below, brought an action against the N. Y. P. & O. Railroad Company and the N. Y. L. E. & W. Railroad Company, for damages for personal injuries. Issue being joined between the parties, the N. Y. L. E. & W. company before the trial, served upon the plaintiff below an offer in writing to allow judgment to be taken against said company for the sum of fifteen hundred dollars, which offer was not accepted by her. Upon the trial she recovered a verdict against both companies for just fifteen hundred dollars. There-, upon the company which made the offer, claimed that it was entitled to a judgment against her for its costs from the time of such offer. The court of common pleas refused to render such a judgment for costs and rendered a .judgment against both companies for the amount of the verdict and for all the costs, to which the N. Y. L. E. & W. company excepted. The circuit court affirmed the judgment of the common pleas. Thereupon the N. Y. P. & O. company filed a petition in this court to reverse the judgment below on other grounds, and the N. Y. L. E. & W. company filed a cross petition in error to reverse the judgment below as to costs.
    
      N. B. Tidballs, and W. E. Talbot, for cross-petition.
    
      W. IT. Upson, and J. J. Hall, for Harriet A. Clark.
   By the Court.

In an action for the recovery of money only, against two or more defendants, either one of such defendants has the right, under section 5140, Revised Statutes, to offer in writing before trial to allow judgment to be taken against such defendant for a sum named in such offer, and upon a refusal to accept such offer, and a failure to recover more than was offered, such defendant is entitled to have judgment rendered against the plaintiff in his favor for his costs from the time of such offer. In such case judgment should be rendered against both defendants for the amount of the verdict and costs up to the time of. the offer and judgment for the remainder of the costs against the defendant who made no offer, and judgment against the plaintiff in favor of the defendant who made such offer for his costs from the time of such offer.

Thejudgment against the N. Y. P. & O. company should be affirmed. The judgment against the N. Y. L. E. & W. company for the amount of the verdict should be affirmed, and the judgment against said last named company for costs should be reversed, and the costs should be divided, and so much thereof as accrued before said offer was made should be adjudged against said company, and said company should recover judgment against the plaintiff below for its costs which accrued after said offer was made, and she should pay the costs by her made from the time of said offer, unless she can compel the other defendant to pay the same.

Judgment accordingly.  