
    Megrath and Hasbrouck v. Van Wyck.
    An order that the plaintiff pay the defendant’s costs subsequent to an offer to take judgment under section 385 of the code, is not properly any part of the judgment to be entered in the action.
    It may be enforced under the act of 1847, by execution.
    Every order in an action, which passes upon and determines a positive legal right of either party, is appealable, under the second subdivision of section 349 of the code.
    In this and the like sections, the “merits" mean the strict legal rights of the parties, as distinguished from mere questions of practice, which every court regulates for itself, and from matters which depend upon the discretion or favor of the court.
    An order, granting to the defendant costs of the suit, subsequent to an offer under section 385, involves some part of the merits of the action, and is appealable.
    An offer to allow the plaintiff to take judgment, under section 385 of the code, need not contain an offer on the subject of costs to that time. On entering judgment upon the offer, the plaintiff is of course entitled to costs, by section 303.
    (Before Oaklet, Ch. J., and Sandfobd and Paine, J J.)
    Jan. 11 and 18, 1851.
    This was an appeal from an order at chambers. The suit was brought to recover for oil sold and delivered, for which the plaintiff claimed $259 16. After the defendant appeared, his attorney, on the 24th of October, 1849, served on the plaintiff’s attorney, an offer in writing, that the plaintiff might take judgment against him in the action, for the sum of $238 40. The plaintiff did not accept the offer. The cause was tried in December, 1850, and a verdict rendered for the plaintiff, for $229 71, with interest from Hay 11th, 1849, which interest was $7 27. The defendant moved for an order, that the plaintiff pay his costs subsequent to the offer, which order was granted, and the plaintiff thereupon appealed.
    On the appeal being moved, the defendant insisted that the order was not appealable, and the court heard this point argued, before the hearing of the appeal. On its being decided at a subsequent day, that the order was appealable, the merits of the question were heard. Both decisions are reported as if made at the same time.
    
      Hcnneyn & McKmsbry., for the plaintiffs.
    
      
      Cutler <& Townsend, for the defendant.
   By the Court.

Is this order appealable under section three hundred and forty-nine of the code of procedure ? If it were properly a part of the judgment, it would come up for review on an appeal from the judgment; but we think it is not. The plaintiffs still recover a judgment for their verdict, with the costs accrued at the time of the offer. The defendant’s costs directed to be paid by this offer are collectible by force of the order, under the act of 1847. (2 Laws of 1847, page 491; 2 Sand. E. 658.) *

Considered as an order simply, it does not fall within the first, third, or fourth classes of orders from which an appeal is allowed. Does it involve the merits of the action or any part thereof? The most sensible definition we have seen on this subject, is that given by Selden, J., in the general term of the supreme court in the seventh district, in the case of St. John v. West, 4 How. Pr. E. 329, 332. He says the word “ merits ” in these and like sections of the code, should be understood as meaning the strict legal rights of the parties, as contra-distinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court. This will give an appeal from every order which passes upon and determines any positive legal right of either party, and deny it in all other cases. We have no hesitation in adopting this construction, as fully carrying out the intent of the code; and we may remark, that the commissioners on pleading and practice declared their intention to be to make the actual and final determination of a matter involving a substantial right, the test of an appealable order or judgment. (Eeport of 1848, p. 19.)

This order involved a substantial legal right, and is therefore the subject of an appeal.

2. The plaintiffs insist the order was wrong, because the defendant’s offer was silent as to costs, and if they had filed it they could have entered judgment only for the sum mentioned in it, which is less than the verdict with the costs to the time of the offer.

We think the plaintiff’s construction of the act is erroneous. The section (three hundred and eighty-five) is silent as to costs, both in the offer and the judgment thereon. The offer is to contain a sum or a relief, for which judgment is to be entered. Then section three hundred and three applies, and gives to the plaintiff upon such judgment, the costs of suit. If the suit were one for specific performance, and the offer were for a judgment of performance simply, there is no doubt on entering such judgment the clerk would be bound to insert in the entry the allowance of costs. And the form of the offer must be the same in an action to recover money only. If it be necessary to insert in the offer the allowance of costs in the latter instance, it must be in the former. We think the statute does not require it in either, and the order appealed from must be affirmed.  