
    George Guttroff, App’lt, v. Julius Wallach et al., Resp’ts.
    
      (City Court of New York, General Term,
    
    
      Filed March 17, 1893.)
    
    Costs — Offer of judgment — Waiver by proceeding to triad.
    A party by proceeding to trial before his time to accept an offer of judgment has expired in effect elects not- to accept the offer, and by such election waives any rights he may have had under the offer.
    Appeal from an order made herein, directing that the defendants, and not the plaintiff was entitled to costs, except that the plaintiff was entitled to his costs and disbursements up to July 23, 1891, the date of the service of the offer of judgment herein.
    As appears by the case on appeal, this action was brought for work, labor and services and materials furnished, amounting to the sum of one hundred and twenty-four and 80-100 dollars ($124.80), with interest from May 19, 1891.
    The answer was not served until July 23, 1891, and was a general denial.
    On the same day an offer of judgment was served, offering to allow the plaintiff to take judgment in the sum of seventy-four and 80-100 dollars ($74.80), with interest from May 19, 1891, together with costs, etc.
    This offer of judgment was retained by the plaintiff, and never returned on any ground.
    On the 7th day of December, 1892, an order was made granting leave to the plaintiff to amend his complaint, without prejudice to the pleadings already had, and an amended complaint was served, and on December 2, 1892, another offer of judgment was served, and an answer to the amended complaint was served, admitting the claims set forth in the first paragraph of the amended complaint, amounting to seventy-four and 80-100 dollars ($74.80) and denying as to the second cause of action, wherein plaintiff claimed fifty dollars ($50.00).
    _ The case was duly tried on December 12, and resulted in a verdict in favor of the plaintiff for eighty-one and 90-100 dollars ($81.90), the amount claimed in the plaintiff’s first cause of action, and the amount and interest thereon for which defendant offered judgment, and upon the second cause of action in a verdict for the defendant.
    On the same day, December 12, and after the rendition of the verdict herein, plaintiff’s attorney served a full bill of costs, and also a written acceptance of defendant’s offer of judgment for seventy-four and 80-100 dollars ($74.80) and interest, made on December 2.
    
      The plaintiff had his full bill of costs taxed by the clerk, at the sum Of ninety-six and 25-100 dollars ($96.25), while the defendant’s attorney had his full bill of costs taxed at seventy and 92-100 dollars ($70.92).
    Upon a motion made for a re-taxation of said costs an order was made on December 17, 1892, wherein it was,
    “ Ordered, That' the defendants herein, and not the plaintiff, are entitled to a bill of costs, which the clerk of this court .is hereby directed to tax.
    “ It is further ordered that the plaintiff is not entitled to a bill of costs herein, and is only entitled to costs and disbursements up to July 23, 1891, the date of the service of the offer of judgment herein.”
    On December 21, 1892, an order was made resettling and amending the above order as follows :
    “ It is ordered, that the said order be and the same is hereby resettled and amended by inserting therein, after the word ‘ on,’ on the eleventh line, the words 1 reading the summons and complaint, the offer of judgment, dated July 23, 1891, the answer, the amended complaint, amended answer, the offer of judgment, dated December 2, 1892, extracts of minutes, and the acceptance of offer verified on and served on the 12th day of December, 1892.’ ”
    From these orders plaintiff appeals.
    
      Herman Bolte, for resp’t; Maurice Meyer, for app’lts.
   McGown, J.

The plaintiff had ten days after the service of the second offer of judgment, made on December 2, within which to serve a written notice of his acceptance of said offer, and upon such acceptance he could have entered his judgment for the amount of his first cause of action, seventy-four and eighty one-hundredth dollars ($74.80), interest thereon and costs up to the time of the offer, without application to the court, and without a trial.

The case appeared upon the day calendar for December 6th.

Plaintiff answered ready, and insisted upon the case being tried, and the case was actually tried on December 12th, having appeared daily upon the day calendar, and a verdict was rendered for the plaintiff on his first cause of action, and for the defendant on the second cause of action.

The plaintiff, by proceeding to a trial, did not obtain a more favorable judgment than that offered him by the defendant.

He evidently delayed the acceptance of the second offer of judgment until his full time for acceptance had expired, and after verdict rendered, trusting to obtain a more favorable verdict than that rendered.

In all cases of offer of judgment, a plaintiff has ten days wherein to elect whether he will accept it or not, or he may proceed to trial.

By proceeding to trial, before his time to accept had expired, he in effect elected not to accept the offer, but evidently intended to take the chances of obtaining upon a trial a more favorable judgment than that offered.

We do not think that it was intended by or that it is within the meaning of section seven hundred and thirty-eight (§ 738) of the Code, that a plaintiff should have the right to avail himself of the benefit of an acceptance of an offer of judgment and a trial at the same time.

By electing to bring on the cause for trial before his time to accept had expired, he waived all rights he may have had under the offer.

The plaintiff not having obtained a more favorable judgment than that offered before trial, is not entitled to any more costs than he would have been entitled to had he accepted the offer, viz., costs only up to the time of the offer, December 2d, while the defendant is entitled to costs from that time, December 2d.

1 The order appealed from must be modified so as to conform to above opinion, and as so modified will be affirmed, with costs.

Ehrlich, Ch. J., and Fitzsimons, J., concur.  