
    OCTAVIUS M. HAWLEY, Appellant, v. GEORGE W. DAVIS, Respondent.
    
      Off&r of judgment — right of plaintiff to proceed with trial aftm\ and hefoi'e the expiration of the ten days — Costs — trial fee.
    
    An issue of fact having been joined, in this action, and the case duly noticed for trial for a Circuit commencing June fourteenth, the defendant, on the ninth of June, served upon plaintiff's attorney an offer of judgment and a notice of withdrawal of answer. On the fifteenth of June plaintiff took an inquest and entered judgment for the amount claimed, with costs. Held (1), that the notice served by defendant must be treated as equivalent to an offer of judgment under section 385 of the Code; (2), that as the ten days within which the Code required the plaintiff to accept or reject the offer had not elapsed when the action was tried, the plaintiff was entitled to the fee allowed for the trial of an issue of fact.
    
      Pomeroy v. Hulin (7 How., 161) followed.
    Appeal from an order made at the Special Term, striking out the fee allowed for the trial of au issue of fact from a bill of costs taxed by the clerk of Broome county.
    
      SeoviU db De Witt, for appellant. . Isaac 8. Newton, for respondent.
   Opinion

per Curiam.

Present — Learned, P. J., Boardjian and Bocees, JJ.

Order reversed with ten dollars costs, and motion to strike out denied without costs.  