
    William Watson, Pl’ff, v. Albert Benz, Def't.
    
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Costs—Offer of judgment—Code Civ. Pro., § 3072.
    Section 3072 of the Code applies only to cases where the action is deemed at issue in the appellate court, which is not until twenty days after notice of appeal.
    2. Same.
    Plaintiff recovered judgment for a sum of money in a justice’s court, from which defendant appealed. Within twelve days after notice of appeal defendant served an offer of judgment for a specified sum, nothing being said about costs. Held, that the offer was made under § 3070 of the Code arid must be disposed of in accordance therewith.
    Motion by defendant for re-argument or for leave to appeal to, the court of appeals.
    
      Harrison S. Moore, for motion; C. A. S. Van Nostrand, opposed.
    
      
       See 32 N. Y. State Rep., 719.
    
   Barnard, P. J.

This is a motion for a re-argument upon -the ground that this court overlooked the application of § 3070 of the Code of Civil Procedure to the question presented by the appeal in its decision rendered July 19, 1890.

The action was tried in justice’s court, and plaintiff recovered judgment; the defendant served notice of appeal on January 11, 1890, and on the 23rd of January, 1890, served an offer on plaintiff to allow judgment in the appellate court fora stated sum. The offer was not accepted by plaintiff, and the judgment on appeal was less favorable to plaintiff than the offer.

The costs of appeal were taxed in favor of plaintiff by the cleric, and an order vacating the same was granted by the county court, from which order an appeal was taken.

The case was decided at the last term of this court under § 3072 of the Code of Civil Procedure.

Section 3072 provides that “Either party may, at any time after the action is deemed at issue in the appellate court, and before the trial, serve upon the adverse party a written offer to allow judgment to be taken against him for a sum or property, or to the effect therein specified, with or without costs."

This section seems to apply only to cases where the “ action is deemed at issue in the appellate court.”

Under §§ 3053 and 3071 an action is not deemed at issue in the appellate court until twenty days after notice of appeal.

It would seem, therefore, that the offer in this case is controlled by § 3070, which provides that upon appeal from a judgment “ for a suni of money only, either party may within fifteen days after service of the notice of appeal serve upon the adverse party or upon his attorney the written offer to allow judgment in the appellate court in favor of either party for a specified sum."

The judgment appealed from was for a sum of money only; the offer was to allow judgmént in the appellate court for a specified sum; it was served twelve days after the service of the notice of appeal, and before the action could be “ deemed at issue in the appellate court.”

The offer having been made under § 3070, it should be disposed of in accordance with its provision.

A re-argument should, therefore, be ordered.

Dykman, J.

The motion for a re-argument should be granted, without costs.

Pratt, J., concurs.  