
    TOMPKINS against IVES.
    
      Court of Appeals;
    
    
      January, 1867.
    Oefee to allow Judgment.—Costs.
    The defendant served an offer, under section 385 of the Code of Procedure, to allow plaintiff to take judgment for a specified sum. The offer not being accepted, he served an answer setting up a counter-claim. On the trial the counter-claim was allowed, and the plaintiff recovered judgment for a sum less than the amount named in the offer. The aggregate, however, of the amount for which he recovered judgjnent, and the counter-claim extinguished by the judgment, exceeded the amount named in fhe offer.
    
      Held, that the plaintiff was entitled to costs. The recovery was more favorable than the offer, inasmuch as it benefited the plaintiff by extinguishing the counter-claim, as well as by entitling him to the nominal sum awarded.
    Appeal from a judgment and order of the Supreme Court.
    This action was brought by Loren L. Tompkins against Titus Ives, to recover for services rendered, and for board and lodging furnished to the defendant.
    Four days before interposing an answer to the complaint, the defendant served an offer to allow judgment to be taken for $70, besides costs and disbursements. This offer was not accepted. , The defendant then answered, setting up, among other things, counter-claims for goods sold and services rendered.
    The cause was tried before a referee, who found, as conclusions of fact, that the demands of the plaintiff, established on the hearing before him, amounted to $336 40; that the amount of the defendant’s payments and counter-claims was $268 61; and that the plaintiff was entitled to judgment for the balance, $67 79, with interest, amounting in all to $69 80, and for that amount judgment was entered. The counterclaims allowed by the referee embraced, among other things, the value of corn, butter and other articles sold by the defendant to the plaintiff, amounting to $37"; so that if this allowance had not been made, the recovery would have largely exceeded the sum named in the offer.
    On the entry of judgment, the clerk adjusted costs on the theory that the judgment recovered by the plaintiff, being for the sum of $69 80, was less favorable than the offer. The plaintiff applied to the special term for a retaxation of costs; and the court set the taxation aside, and ordered that full costs be allowed the plaintiff. From this order the defendant appealed to the general term, when it was affirmed. The object of the present appeal was to review the order of the general term.
    The proceedings in the Supreme Court are reported, 30 Sow. Pr., 13.
    
      Brown & Beach, for appellants.
    
      Moore & McCartin, for respondents.
   Porter, J.

The import and effect of the offer must be determined by the condition of the pleadings at the time it was made. It did not mean one thing then, and another four days afterward. The answer was not designed to vary the terms of the previous proposition, but to take issue on the plaintiff’s demand, and to introduce cross-claims on the part of the defendant, for the purpose of reducing or defeating a recovery, if no notice was given within the ten clays allowed by law. The intermediate pleading was in its nature, provisional ; and a notice of acceptance, whether served on the first or the tenth day, could apply only to the original offer. It would operate upon the plaintiff’s claim, but not upon independent causes of action existing in favor of the defendant.

The litigation resulted in a recovery more favorable to the plaintiff than the offer. The nominal amount was less than the sum proposed; but, in determining the right to costs, the plaintiff is entitled to the benefit of the counter-claims, which the defendant afterward elected to interpose, and which are now extinguished by the judgment. (Code, § 385 ; Fieldings v. Mills, 2 Bosw., 489; Ruggles v. Fogg, 7 How. Pr., 324; Budd v. Jackson, 26 Id., 401; Schneider v. Jacobie, 1 Duer, 694.)

The judgment should be affirmed.

Bockes, J.

Without considering the objection urged, that the appeal is irregular, I am of the opinion that the order awarding costs to the plaintiff was properly granted. The facts bearing on this question are as follows: the defendant’s attorney, before answering the complaint, served on the plaintiff’s attorney an offer under section 385 of the Code of Procedure, consenting that he might take judgment in the action for $70, and costs. The offer was not accepted. An answer was served three days after the service of the offer, setting up payment, and also counter-claims amounting to $100 42. On the trial before the referee, the plaintiff recovered a trifle less than the sum offered.

When an offer for judgment is given, pursuant to section 385, the plaintiff has ten days within which to accept it; and the section provides, that, if the offer be not accepted, and “ if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant’s costs from the time of the offer.”

The question now is, was the judgment recovered more favorable to the plaintiff than the offer ? The plaintiff insists that it was more favorable, because, in addition to the recovery, counter-claims to the amount of $100 42 were extinguished. The offer should be construed as an offer in the action at the time it was served, in its then condition. It had no reference to the case when changed in its condition by future proceedings. In effect, it was this : as the case now stands between us, I will allow you to take judgment for. the sum offered. It meant this, and nothing more, when served; and its signification could not be enlarged from day to day afterward, without any intimation from the defendant of its more comprehensive import; and the section under which the offer was made evidently contemplates that it should take effect at the time of service, for it provides that, if the plaintiff fail to obtain a more favorable judgment, he must pay the defendant’s costs from the time of the offer.

Giving effect to the offer, as of. the time of its service, it is very obvious that the plaintiff obtained a more favorable judgment than he would by its acceptance, in this, that by the judgment, counter-claims to the amount, as set forth in the pleading, of $100 43 were extinguished. He was, therefore, entitled to recover the costs of the action, the same as if no offer had been served in the case.

All the judges concurred, except Hunt, J., who dissented.

Judgment and order affirmed.  