
    Finney vs. Veeder.
    An offer, by the respondent, to let a judgment appealed from be corrected, by deducting therefrom a specified sum, can not be given in evidence on the hearing of the appeal, where it is used for a purpose wholly unauthorized and well calculated to prejudice the appellant’s case; as where, previous to the introduction of the offer, the counsel for the respondent stated to the jury that the offer was made because the a/ppéttmt had ño confidence in his case; and neither the court nor the counsel informed the jury of the proper effect of the offer, upon the question of costs.
    THIS is an appeal from a judgment of the county court of Albany county. The action was commenced in a justice’s' court, where a judgment was rendered in favor of the plaintiff for $100 damages, besides costs. From that júdgment the defendant appealed to the county court, and recovered judgment for costs. After the notice of appeal was served, the plaintiff served upon the defendant the following offer, entitled in the cause, and directed to the attorneys for the appellant:
    
      “Please to take notice that the respondent offers to let the judgment herein he corrected by deducting therefrom the sum of twenty-five dollars. July 7, 1862.
    P. D. Diver, Respondent’s Attorney.”
    This offer was not accepted by the appellant.
    
      Ira Shafer, for the appellant.
    
      L. Tremain, for the respondent.
   By the Court, Ingalls, J.

The only question involved iñ this appeal is whether error was committed in allowing the above offer to be given in evidence under the circumstances, in the manner, and for the purpose for which it was intended. The only legitimate effect of the offer under § 371 of the Code, was upon the question of costs, and I do not think it was necessary even to prove it upon the trial, to secure the benefit of that provision, as it might have been used upon the adjustment of costs. But assuming that it could properly be proved upon the trial, it does not follow that it was appropriately received upon the trial in the county court.

It appears from the case, that it was used by the defendant for a purpose wholly unauthorized, and well calculated to prejudice the plaintiff’s case. Previous to the introduction of the offer, the counsel for the defendant stated to the jury that the offer was made because the plaintiff had no confidence in his case. This statement was objected to by the plaintiff’s counsel, on th'e ground that there had been no proof on the subject, and that if an offer had been made, it could not be proved to the jury. The offer was then given in evidence by the defendant and read to the jury, under the plaintiff’s objection.

It is insisted by the defendant’s counsel that it was properly introduced, to apprise the jury of its effect upon the question of costs. If it be assumed that this position is sound, the difficulty yet remains, as the offer was not used for that purpose. Neither the court or the counsel informed the jury of the proper effect of the offer. On the other hand we must assume, from the facts detailed in the case, that an erroneous impression was produced upon the minds of the jury in regard to the object of such offer, which was allowed to remain uncorrected by the court, and probably did influence the jury to the. prejudice of the plaintiff.

[Albany General Term,

September 18, 1865.

It is said by the defendant’s counsel that, as the verdict was for the defendant, it is apparent that no injury resulted' from the introduction of the offer, as it could only effect the amount of damages in case, the plaintiff prevailed in the action.

I do not think we should thus assume, as it is impossible to calculate how far the jury might have been influenced by the improper use of such evidence. An error can only he disregarded where it affirmatively appears that no possible injury could arise to the party complaining. (Worrall v. Parmelee, 1 Comst. 519.) I am, therefore, of opinion that the judgment must be reversed, and a new trial had in the county court, with costs to abide the event.

Hogeboom, Miller and Ingalls, Justices.]  