
    SUPREME COURT.
    Salmon C. Turner agt. Adelia R. Honsinger.
    Where tho defendant served an answer admitting two items in tho complaint, and denied tho balance of tho complaint, and afterwards, on tho samo day, served an offer of judgment for $1.01 more than the amount of tho admitted items, which offer was not accepted, but tho cause was put on tho calendar for .trial and referred, and on tho trial tho defendant amended her answer and sot up two counter-claims, one for $105.37, and tho other for $8.61, and on tho trial the plaintiff defeated tho counter-claim of $105.37, and tho defendant recovered upon tho counter-claim of $8.61, and interest thoroon, which was deducted from the amount admitted by tho answer, and tho balance of $87.37, reported as dus tho plaintiff March 22, 1866:
    • Held, that tho plaintiff had recovered “ a mare favorable judgment than the. one offered,” and was entitled to full costs under section 385 of the Code,
    
      
      Clinton Special Term, June 5, 1866.
    
      Before Bockes, J.
    This action was brought to recover an amount alleged to be due on various items stated in the complaint.
    The answer was served August 11,1865, and admitted the defendant’s liability upon two of those items, which amounted that day to $93.99, and denied all the other allegations in the complaint. One hour after the service of the answer, the defendant served an offer that plaintiff might take judgment for $95 and costs, making $1.01 more than defendant had admitted by the answer to be due.
    The plaintiff did not accept the offer, but noticed the cause for trial at October circuit, 1865, arid the same was referred, and in January, 1866, after the trial had progressed two days, the defendant amended her answer, and inserted therein two counter-claims, one of $405.37, and the other for $8.61, and interest from November 20, 1863. On the trial the defendant failed to recover any part of the first counter-claim, but did recover the whole of the second. The referee reported due the plaintiff $87.73, March 22, 1866, which is the balance of $93.99 and interest, after deducting the amount of the second counter-claim.
    On these facts the plaintiff moved the court for full costs on. the ground that he had recovered “ a more favorable judgment,” under section 385 of the Code, than the defendant offered.
    D. S. McMasters, for motion,
    
    cited in favor of the motion 7 How. 324; 2 Bosw. 499; 1 Duer, 694; 10 How. 270; 15 Id. 420; 26 Id. 398; 8 Id. 240; 30 Id. 13; 18 Abb. 368.
    Beckwith & Sons, opposed.
    
   The judge granted the motion, and ordered that the plaintiff be allowed “full costs in the action, and the clerk of Clinton county is hereby directed to adjust an'd allow plaintiff’s costs, &c., on the usual notice, after the entry of this order, &c.”

No written opinion was given.

The following Note furnished by one of the counsel in this case, gives his views of tho practical working of this section of the Code:

Note.—The rights of parties under section 385, aro yet involved in much doubt and uncertainty. Whether a plaintiff has recovered “a more favorable judgment" under ■ that section than was offered, has been and will continuo to be a difficult question to determine in consequence of the material facts of each case being different from any previously reported caso. The offer has a double effect: First, it throws tho costs of the futuro litigation upon the plaintiff, if ho does not recover a moro favSrablo judgment than was offered; and, secondly, to throw full costs upon tho defendant if ho does not offer enough. Practically, tho defendant’s attorney makes the offer a little in advance of the amount which he believes tho plaintiff can and will recover in the action, and in caso tho plaintiff does not accept tho offer, tho future costs depend upon whether the recovery is inoro favorable than the offer.

In this case the answer was first served. It admitted $93.99 due tho plaintiff on two items named, and denied all tho others. Next came tho offer on the samo day for $95, just $1.01 above tho amount admitted to bo duo by tho answer.

Had tho litigation proceeded upon tho complaint, answer and offer, as they then stood, tho plaintiff must have paid the futuro costs to tho defendant, bocauso ho recovered $1.01 loss than tho amount offered, upon the whole complaint. But had the offer been accepted by tho plaintiff, tho defendant would havo recovered two counter-claims against tho plaintiff, and they would not havo been extinguished by tho acceptance of the offer, bocauso not in the answer at that timo. But on tho trial tho defendant inserted in the amended answer two counter-claims, and had tho defendant recovered tho full amount of both thoso counter-claims, tho defendant would have been ehtitlod to costs after tho offer, the same as though tho litigation had proceeded on the original pleadings. In both cases tho plaintiff would havo recovered upon his claims in tho complaint $1.01 less than the offer. Tho defendant in this case succeeded in establishing the second counter-claim of $8.61, and the amount reported duo tho plaintiff was only $87.73, a sum much less than the amount offered, which otherwise would havo boon $93.99. Still the defendant pays full costs to tho plaintiff, because tho plaintiff defeated tho other counter-claim of $405.37. But suppose tho plaintiff had defeated only $2 of this last counter-claim? These $2 added to tho $93.99, would exceed tho amount of tho offer, and apparently give tho plaintiff a moro favorable judgment than was offered, and entitle him to full costs. •

But tho report would have been in favor of the defendant for $317.99. In such a state of the case, will the plaintiff bo entitled to recover full costs against tho defendant, and have the samo deducted from tho amount reported against him, or will tho defendant enter judgment with full or partial costs ? Such a case, and a variety of other cases under this section, will arise for adjudication.

The case of Ruggles et al. agt. Fogg (7 How. 324), decided by Judge Harris, is tho leading ease, and seems to havo been recognized and followed in all subsequent cases under this section.

The rule to be extracted from that, and from this case and other cases, seems to be, “that whore the amount recovered, and the amount extinguished of tho counter-claims inserted in tho answer after tho offer made, together exceed the amount offered, tho plaintiff is entitled to full costs.”

But whether this rule will be applied to a recovery by tho defendant, as in tho case above stated, remains to be seen.

The law ought to be that when an answer is served after an an offer made, or an answer is amended after an offer is made, the offer should bo deemed to bo withdrawn. With this amendment to tho section, thoro will be little or no difficulty in determining whether tho plaintiff in any given case has recovered a more favorable judgment than was offered, and the game nowplayedfor costs willbe up.  