
    Thomas McVicar, Respondent, v. Norah Keating, Appellant.
    
      Offer of judgment — it ccmnot be withdrawn, — consideration therefor — the court may allow its withdrawal in case of mistake.
    
    Where an offer of judgment is made in an action, it cannot be withdrawn by the defendant before the expiration of the period of ten days, given to the plaintiff by section 738 of the Code of Civil Procedure, for the service of his notice of acceptance; such an offer is, in effect, an option given to the plaintiff to act in the premises during a period of ten days, and its consideration consists in the fact that the offer enables the defendant to avoid liability for subsequently accruing costs.
    
      Semble, that the court has power to allow a defendant to withdraw an offer made under a mistake.
    Appeal by the defendant, Norah Keating, from an order of the City Court of Yonkers, entered in the office of the clerk of said court on the 3d day of April, 1897, denying her motion for an ■ order preventing the plaintiff from taxing costs and entering judgment on an offer of judgment served by her.
    
      F. X. Donoghue, for the appellant.
    
      John H. Ferguson, for the respondent.
   Goodrich, P. J. :

The plaintiff sued on a contract for work and labor, $176.81, and interest from November 13, 1894. The defendant answered, seting up a defense and counterclaim, and at the same time served an offer of judgment for $120 and interest from November 13, 1884, and costs. There was an evident mistake of the date from which. interest ■ was to run, and when the. plaintiff’s attorney called the attention of the defendant’s attorney to it, it was agreed between them that the error should be deemed corrected.

■ Four days after the service of the offer the defendant’s attorney served notice of its withdrawal, and claims to have done so because his client had only intended to authorize him to offer a gross, sum of $120, intending therein to include claim, interest and costs. The plaintiff’s attorney disregarded the withdrawal, and within the ■ ten days which the Code of Civil Procedure (§ 738) gives to accept an offer, sei’ved notice of acceptance of the same, whereupon the defendant obtained an order requiring the plaintiff to show cause why he should not be prevented from taxing costs and entering judgment; and the court entered an order ■ denying the motion, from which the defendant appeals.

The defendant’s counsel contends that such an offer is governed by the same rule which controls an offer in the nature of' a proposal for a contract, which may be withdrawn at any time before acceptance. (Schenectady Stove Co. v. Holbrook, 101 N. Y. 45.) We are of opinion that the defendant could not, as a matter of right, withdraw his offer of judgment in the action within the ten days which the Code gives the plaintiff to act upon it. It is true that the offer of judgment and acceptance, when served, constitute a contract between the parties, which the court cannot set aside upon motion . (Stilwell v. Stilwell, 81 Hun, 392); and it is also true that, ordinarily, an offer of a proposed contract, made by one party, can be withdrawn at any time before acceptance. (Scheneetady Stove Co. v. Holbrook, supra.) But an offer like this stands upon a different basis. The Code expressly allows the plaintiff ten days to. consider the offer. It is, therefore, in the nature of an option given by one party to another to exercise within a definite period, which, if given for a consideration, cannot be withdrawn until the end of the' period prescribed for exercising the option. Here the consideration for the option" is ample.. It is given under the provision of the Code which enables a defendant, by making such an offer, to avoid liability for any costs, that may accrue subsequently, provided the plaintiff’s recovery does not exceed the amount offered. We agree with the opinion of Mr. Justice Van Brunt, in Eagan v. Moore (2 Civ. Proc. Rep. 300), that in a proper case, as, for instance, in cases of a mistake, the court might allow a party to amend his offer of judgment; and, as a result of that doctrine, it follows that, in a- proper case, he could also be allowed to withdraw it.

The facts attending the offer of judgment in the case before us are the subject of conflicting affidavits by the parties. The city judge of Yonkers, on these affidavits, determined the facts to be such that the plaintiff should not be prevented from entering judgment, and the discretion of that court we cannot review.

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

All concurred.

Order affirmed, with ten dollars costs and disbursements.  