
    Lewis Mock, Resp’t, v. Peter Saile, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1889.)
    
    1. Judgment—Offer of—When plaintiff not entitled to costs— Code Crv. Pro., § 2892.
    The right of the defendant, in an action in the municipal court of Rochester, to make an offer of judgment is given by section 2892, Code Civil Procedure, and the effect of it is, if the same is not accepted, that the plaintiff shall not recover costs from the time of service of the summons, if he fails to obtain a more favorable judgment. This section is applicable to the municipal court of Rochester.
    2. Same—When of no avail on appeal—Costs—Code Crv. Pro., § 8070 as amended by Laws 1885, chap 522.
    An offer of judgment which may have been made in the court below, is of no avail to the defendant in the action after the same has been removed by appeal to the county court for re-trial, and either party in whose favor the verdict, report, or decision of the appellate court is given, is entitled to recover costs upon appeal.
    Appeal from an order of the Monroe county court, denying the defendant’s motion for a re-taxation of costs in an action originally commenced in the municipal court of Rochester. The recovery in that court was for the plaintiff in the sum of $141.26, from which the defendant appealed, and in the county court the verdict was for the sum of $35.00 only. The action was founded upon contract for the recovery of money only. Costs were taxed in the plaintiff’s favor, and inserted in the judgment roll.
    
      P. H. Hulett, for appl’t; S. B. Bentley, for resp’t.
   Barker, P. J.

The defendant appeared in the municipal court on the return of the process and made a written offer that judgment might be taken against him for thirty-five dollars, with costs, which the plaintiff did not accept. On the trial in the county court the plaintiff had a verdict for thirty-five" dollars only.

The right of the defendant in an action in the municipal court to make an offer of judgment is given by section 2892 of the Code of Civil Procedure, and the effect of it is, if the same is not accepted, that the plaintiff shall not recover "costs from the time of service of the offer, if he fails to obtain a more favorable judgment. This is the only provision on the subject, and the section of the Code in which it appears is found in chapter 19, entitled “Courts of justices of the peace, and proceedings therein.” This and other sections of that chapter are applicable to actions commenced in the municipal court of Rochester.

The appellant insists that this offer was a part of the papers and proceedings properly returned by the justice to the county court, and remains in full force and is to be considered and to have the same effect on the question of costs, as if made after appeal in pursuance and in compliance with the provisions of section 3070, as amended by chapter 522 of Laws of 1885.

We cannot concur in giving these sections the construction contended for by the appellant. The provisions contained in said sections as to making offers of judgment are applicable only to actions pending in the courts referred to respectively.

There is nothing in section 3070 indicating that an offer which may have been made in the court below shall remain in force or be of any avail to the defendant in the action, after the same has been removed by appeal to the county court for retrial.

It is expressly provided in that section that “on appeal provided for in this article, either party may make an offer of judgment,” clearly indicating that the offer must be an original one; and as further indicating that such is the meaning of the section. A right is also given the respondent to make an offer, which he did not have in the court "below. The concluding paragraph of the section declares the effect of the omission by either party to make and serve an offer as provided by that section, and it is expressed in these words; viz.: “The party in whose favor the verdict, report or decision in the appellant’s court is given, shall be entitled to recover costs upon appeal.”

The defendant not having made an offer of judgment in the county court where he demanded a retrial, he is required to pay costs, as the plaintiff had the verdict.

The order appealed from should be affirmed, with ten dollars costs.

All concur.  