
    George Lauffer, Plaintiff, v. Frederick Bast, Defendant.
    (Supreme Court, Erie Special Term,
    April, 1901.)
    Offer of judgment to defendant — Code C. P., § 3070 — Costs- taxable t thereon.
    Where the defendant recovers judgment against the plaintiff for more than fifty dollars in a Municipal Court and the plaintiff, after having duly appealed to the Supreme Court of the county, makes -an offer of judgment for less than fifty dollars and the defendant accepts it, the latter is entitled to judgment for the offer and to costs up to the entry of judgment as fixed by the statute creating the Municipal Court (L. 1898, ch. 101).
    Motion for retaxation of costs.
    E. G. Mansfield, for plaintiff.
    Schwendler & Lester, for defendant.
   Lambert, J.

The defendant in this action recovered a judgment against the plaintiff in the 'Municipal Court of Buffalo for the sum of fifty-nine dollars. The plaintiff appealed to this court for a new trial, and in due time made an offer of judgment under section 3070 of the Code, permitting the defendant to take judgment for twenty-five dollars. The defendant duly accepted this offer.

The question arising here is as to whether the defendant is entitled to enter judgment for the twenty-five dollars merely, or for twenty-five dollars and costs up to the time of the entry of the judgment.

I believe that the defendant is entitled to costs in addition to the twenty-five dollars. This was the view adopted in Hollenback v. Knapp, 42 Hun, 207, where it is stated that “ The costa and disbursements are a mere incident to the recovery. The debt or damages are the recovery and not the costs, which are uncertain, indefinite and growing as the case goes on. The costs and disbursements have nothing to do with the offer of judgment, and ordinarily follow the recovery as an incident thereto.” This rule is also followed in Smith v. Dederick, 18 Misc. Rep. 507, and it seems to be an entirely just rule. The object of the provision for an offer of judgment seems to be to permit a party who realizes that he is liable to a certain extent, to confess this liability, and thus prevent a further accumulation of costs against him, if his adversary unsuccessfully presses a claim for a greater amount. But the very fact that a party makes an offer of judgment is a confession that his adversary had a just claim, and the law will not penalize a person who seeks its aid in the enforcement of a just claim, by compelling him to bear the expenses of the litigation, however far it may have proceeded.

The plaintiff in support of his contention that the defendant is entitled to no costs whatever, cites but two cases, viz.: McKuskie v. Hendrickson, 128 N. Y. 555, and Pierano v. Merritt, 148 id. 289. In the former of these the plaintiff recovered a judgment in a Justice’s Court. The defendant appealed to the County Court, demanding a new trial, and served an offer of judgment. The plaintiff did not accept this offer, and upon the trial recovered a judgment, which was greater than the amount of the offer, but less than fifty dollars. The Court of Appeals held that the plaintiff could not recover costs because “ there is no provision in the Code giving the plaintiff costs in such a case against the defendant where the recovery is for less than $50.00,” "thereby implying that if The recovery had been for more 'than fifty dollars in favor of the plaintiff, or for any amount in favor of- the defendant, the successful party would have been entitled to costs, because there is provision to this effect in the Code. §§ 3228, 3229.

In the Peirano case, neither party made an offer of judgment, and although the plaintiff recovered an amount less than fifty dollars, the court held that he was entitled to costs. This decision was based upon section 3070 of the Code. The court says that the object of this section is to encourage the settlement of litigation, and that if neither party-takes advantage of the opportunity given him to make an offer of judgment, each thereby makes himself liable for the costs to the successful party, however small the recovery may be.

Applying to this case the principle of the Pierano case, viz., fhat- the object of this section is to encourage the settlement of litigation, it would seem that a defendant who accepts an offer, is entitled to quite as much consideration as the plaintiff who makes the offer, because without this acceptance the litigation would not be ended. The defendant should not, therefore, be compelled to pay his own costs, when the plaintiff by the offer , of judgment admits that he unjustly brought the defendant into court.

The defendant upon this motion also asks that an error in the amount of costs, as taxed by the clerk of the Municipal Court, and followed by the clerk of this court may be corrected. It clearly appears that such an error has been made, and that the statutory allowance in the Municipal Court should have been fifteen dollars instead of eight dollars. Laws of 1898, chap. 101, § 462, subd. 5.

The clerk should therefore be directed to retax the costs at twenty dollars and fifty cents, and to enter judgment in favor off the defendant for twenty-five dollars and twenty dollars and fifty cents costs.

Ordered accordingly. ,  