
    Sherman v Shisler.
    
    (Superior Court of Buffalo—Special Term,
    June, 1893.)
    The offer to allow judgment to be taken, upon appeal for a new trial, provided for by section 3070 of the Code, contemplates that it may be' made by a party himself, or acting through an attorney ; and, therefore, such an offer need not be subscribed by the party in person
    Where an offer of j'udgment is made upon an appeal for a new trial, which is not accepted, and the plaintiff recovers upon the new trial more than the amount of the offer, but less than fifty dollars, he is not entitled to costs; but the defendant is not, on that account, entitled to tax, or have refunded the costs of the court below, which he was required to pay in order to perfect his appeal, as his right to do so depends on his succeed - ing on the appeal.
    Motion for an order setting aside taxation of costs by the clerk, and for retaxation of the same.
    
      
      A. R. Pennell, for plaintiff.
    
      M. A. Gearon, for defendant.
    
      
       Received too late for insertion in proper place —[Reporter.
    
   Hatch, J.

The plaintiff had judgment in the court below, ■from which defendant appealed, demanding a new trial in the ^appellate court, his present attorneys subscribing the notice of appeal as attorneys in the action. This was authorized. Code Civ Proc. § 3046.

When appealed the action became one pending in the appellate court, and the same proceedings which obtain therein in an action are applicable to it, except as otherwise specially prescribed. Code Civ. Proc. § 3071.

The powers, obligations and duties of the attorneys who appear and take the appeal are unaffected by other provisions, and their standing is the same as though the action were originally brought therein. But this is not true of the course of procedure, for while they act as attorneys untrammeled, they follow the special course prescribed by law. By virtue •of their authority as attorneys, and before trial in the appellate court, they caused to be sei-ved a notice, subscribed in the name of the defendant, by them as attorneys, offering to allow .judgment to be entered against the defendant for a sum therein named, and served the same upon plaintiff’s attorney. The notice m 'its body is, in all respects, such a notice as is required by section 3070 of the Code.

Plaintiff filed no notice of acceptance, but proceeded with the trial, obtaining a verdict for a sum greater than the amount ■of the offer, but less than fifty dollars. If the offer be m all respects good, then, under these facts, plaintiff is not entitled to tax costs McKushie v.. Hendrickson, 128 N. Y. 555.

It is claimed, however, that the notice is a nullity, for the reason that it is not made or subscribed by the defendant in person, and that there is nothing to show that the attorneys were authorized, to make it. Section 3070 of the Code does not expressly say that the offer shall be subscribed by the party in person; its language is “either party may,” etc., serve.. Usually what is required to be done by a party to an action is deemed done by him when his attorney does the act, and such is the result in all cases unless some provision of law prescribes a different rule. Under the section in question it is seen that the notice may be served upon the party or his attorney; then it provides: If the party * * * after service of the offer upon him,” etc. Here we see that the language used would indicate that the service was to be, and presumed to have been made upon the party personally, while the prior provision is that it may be made upon him or his attorney. I am of opinion, therefore, that the offer provided for by this section contemplates that it may be made by a party himself or acting through an attorney, and that the acts of each are governed by the same rule, allowing in each case the attorney to represent the party. This construction is borne out in the case of Fowler v. Haynes, 91 N. Y. 346.

In that case defendant’s attorney appeared in Justice’s Court,, was sworn to his authority to appear, and upon such authority made offer of judgment, which was accepted. The authority being challenged, the court said: “ We are also of opinion that the authority of the defendant’s attorney to appear in her behalf empowered him to make the offer of judgment. All the incidents to such authority attached thereto, and among-others to bind the principal by any proceedings which the principal herself might take therein, and it was not necessary that in addition to his swearing to his authority to appear generally for her, he should have further sworn to his authority to make-the offer of judgment.” The authority possessed by the attorney in that case was prescribed by law, and he was required to be sworn as to such authority before his appearance could be recognized; so here the authority is prescribed by law, but the attorney need not be sworn, but the same rights are possessed in each case, except that the power of the former is much more limited, and the rules of construction with respect thereto more rigid. The language of the section under which the power was exercised in that case was: The defendant may,” etc., offer. Flo attorney is mentioned, and if the power can be upheld under such language I see no reason why it may not be here.

The rule which obtains in courts of record has no application here, for by special provision of statute in such case authority must be shown where the attorney assumes to act. Code, § mo.

The costs below were an incident to the judgment there rendered. Defendant was required to pay them in order to perfect his appeal, and would only be authorized to tax them in the event he succeeded on the appeal. He did not succeed; consequently, he is not entitled to tax them or have them refunded because plaintiff did not become entitled to tax costs as a result of the trial.

’ It follows from these views that the taxation of costs-by the clerk must he vacated. Ten dollars costs of motion allowed to defendant.

Taxation vacated, with costs.  