
    William Watson, App’lt, v. Albert Benz, Resp’t.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Costs — Offer of judgment — Code Civ. Pro., § 3072.
    If an offer of judgment made on appeal from a justice’s judgment be not accepted, and the party refusing to accept does not fail to obtain a more favorable judgment, he can recover costs from the time of the offer.
    2. Same.
    Defendant appealed from a justice’s judgment, and thereafter served an offer to allow judgment to be taken for five dollars, nothing being said about costs. The offer was not accepted, and plaintiff obtained a verdict for twelve dollars and a half in county court. Reid, that he was entitled, to costs, as the judgment was more favorable than the offer.
    Appeal from order setting aside taxation of costs and reducing-amount of judgment.
    
      O. A. S. Van Noslrand, for app’lt; Harrison S. Moóre, for resp’t.
   Dykman, J.

The plaintiff recovered a judgment in this action against the defendant in a court of a justice of the peace for twenty-five dollars damages and five dollars costs, and the defendant served a notice of appeal to the county court, in which he demanded a new trial in that court.

Within fifteen days after the service of the notice of appeal, the defendant served a written offer to allow judgment to be taken against him for the sum of five dollars, but the offer was silent on the question of costs, and it was not accepted.

The action was retried in the county court, and the plaintiff obtained a verdict for $12.50.

Thereupon the county clerk adjusted the costs of the plaintiff at $64.92 and entered judgment in his favor for $77.42.

Subsequently, and on the motion of the defendant, the county court made an order vacating the adjustment of the costs and reducing the judgment to $12.50, and allowed ten dollars costs of the motion to be offset against the judgment as corrected and reduced.

From the last order the plaintiff appealed to this court, and we find it erroneous. The question lies under the control of § 3072 of the Code of Civil Procedure, which is as follows, so far as it has application to this appeal: “Either party may, at anytime 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. * * * If the party receiving the offer, within ten days thereafter, serves upon the adverse party notice that he accepts it, he may file it with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If the offer is not thus accepted it cannot be proved upon the trial, and if the party to whom it was made fails to obtain a more favorable judgment he cannot recover costs from the time of the offer, but must pay costs from that time.”

As the converse of the last paragraph of this section must be true, it follows that if the offer be not accepted and the party does not fail to obtain a more favorable judgment he can recover costs from the time of the offer; the plaintiff-in this case can recover costs because he did obtain a judgment more favorable to him than the offer. The offer tendered him a judgment for five dollars, and, upon its acceptance by him he might enter judgment for that sum only without costs, whereas he obtained a judgment for twelve dollars and fifty cents, more than double the amount offered, so that both in respect to the verdict and the costs the judgment was more favorable to the plaintiff than the offer.

The case of Zoller v. Smith, 45 Hun, 319; 12 N. Y. State Rep., 438, is not an authority here, because the plaintiff failed to recover ■a judgment more favorable than his offer.

The order appealed from should be reversed, with ten dollars •costs and disbursements, and the motion should be denied, with ten dollars costs.

Baritard, P. J., and Pratt, J., concur.  