
    GRIFFITHS a. DE FOREST.
    
      Supreme Court, Third District; General Term,
    
      Sept., 1862.
    Offer to allow Judgment.
    In an action against several defendants, an offer to allow judgment, under section 385 of the Code, in order to preclude the plaintiff from recovering costs if he fails to obtain a more favorable judgment than contained in such offer, must be expressly an offer on behalf of all the defendants, or, at least, on behalf of-all as to whom the cause is in a situation to perfect judgment. *
    A judgment against all joint-debtors must be deemed more favorable than a judgment for the same amount against a part of them only.
    
      It seems, that the offer in any case would be insufficient if it involved the necessity of severing the action.
    Appeal from an order respecting costs.
    This was an action brought by John Griffiths against Stephen De Forest and three other defendants, upon a joint and several bond. All the defendants were served with summons.
    Two of the defendants served an offer, under section 385 of the Code, in their-own names alone, and' signed by attorneys who appeared for them alone, by which they offered “ to let judgment be taken” for the sum of the penalty of the bond, which was less than the amount claimed in the summons and complaint. The plaintiff did not accept the offer; but, upon a trial of the cause, he recovered only the amount of the penalty of the bond, with interest, being no greater sum than the two defendants had offered.
    The court, at special term, refused to direct the clerk to deduct from the recovery costs accrued after the offer, arid the two defendants who made the offer appealed.
    
      
       In Brush: a. Gilmer (New York Common Pleas; Special Term, May, 1859), it was Meld, that such offer is unavailable, unless the cause is in such a situation in respect to other defendants than those making the offer, that the plaintiff, on filing the offer; can immediately take judgment against all for the amount or to the effect specified.
      • Bradt, J.—The judgment entered in this action was premature. The liability charged against the defendants is a joint one, and judgment could not be regularly perfected against the defendant, Margaret Gilmer, until 'the cause was at an end, as to the other defendant, although an offer to permit judgment to be taken was made and accepted. Where a number of defendants are sued on a joint liability, and some defend, and one fails to answer, the plaintiff is not entitled to judgment against the defendant not answering, until the issue raised by the other defendants has been disposed of. (Gatlin a. Latson, 4 Abbotts’ Pr., 248.) The rule is the same where an offer is made by one of several defendants, because there can be but one judgment; and the offer is unavailable, unless the cause is in such a situation in respect to the other defendants, that the plaintiff, on filing the offer, immediately takes judgment against all for the amount, or to the effect specified. (La Forge a. Chilson, 3 Sand/., 752.) This motion is decided on the question of irregularity alone, and is granted, without costs.
    
   By the Court.—Hogeboom, J.

To entitle the defendants to costs, after serving an offer of compromise, the plaintiff must fail to obtain a more favorable judgment than the one contained in the defendants’ offer. (Code of Pro., § 385.) The judgment which the plaintiff in fact obtained, was a judgment against all the defendants for $500 and interest, besides costs. The judgment which the defendants offered to the plaintiff was a judgment for the same amount, against only two of the four defendants. The former judgment entitled the plaintiff to collect the amount of it from the joint property of all the defendants, and from the individual property of any one of them. The latter judgment would have entitled the plaintiff to collect the same only from the interest of Yan Etten and Lefevre in the joint property of the defendants, and from the individual property of Yan Etten or Lefevre.

I do not think the latter judgment can be said to be as favorable to the plaintiff as the one he actually recovered; and, therefore, he was not, at the peril of being subjected to costs, bound to accept it. The Code did not, I think, by authorizing this offer, intend to deprive the plaintiff of any substantial benefit which he could secure by continuing the litigation, but only to protect the defendants from needless expense.

In construing the defendants’ offer, I have assumed that it was designed to be limited to a judgment against Yan Etten and Lefevre. The offer is in terms made by them alone, and is signed by attorneys professing to act for them alone. It is true, the language is, “ offer to let judgment be taken,”' without saying, “ against thembut I • think it must be construed the same as if the words “ against them” had been added: 1, because section 385 of the Code provides that the defendant may-serve an offer “to allow judgment to be taken against him 2, because, even if two out of four joint defendants have the power to authorize a joint judgment to be taken against all (which I do not decide), I think the offer should be clear and unequivocal on that point, and not subject to misconstruction.

If I am right in the position already taken, the decision of the judge at special term was correct. But I will discuss an additional point in the case.

I am inclined to think the offer should be a practical one,—one of which the plaintiff may avail himself, at once and absolutely, without asking the aid or permission of the court, and without endangering his proceedings against the other defendants.

The section of the Code in question (§ 385) provides that the plaintiff may, within ten days, by notice in writing to that effect, accept the offer; and, in such case, may file the summons, complaint, offer, and affidavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly.

Row, in the first place, it is not clear that the plaintiff may, on his own motion, sever the action by entering judgment against two of the joint defendants, and preserve the action in full vigor against the other two; for section 274 of the Code provides that “in an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper.” It would appear, therefore, to be in the discretion of the court, and not at the election of the plaintiff, whether the action shall be severed. If the plaintiff, therefore, availed himself of the defendants’ offer, and entered judgment, it may be questionable whether he would not thereby discontinue the action against the defendants who had not united in the offer. I think it was not intended that he should subject himself to such a hazard.

Hor do I think he should be compelled to go to the court, and seek permission to sever the action, before he could safely accept the offer. He might or might not have time to do so within the ten days, he might or might not succeed if he made the attempt; and I do not think the law-makers meant to expose him to so many embarrassments and contingencies, at the risk of paying costs to his adversary if he did not. My impression is, the offer must he one which the plaintiff may immediately and absolutely accept, and enter judgment thereon without question as to his power to do so, and without impairing or imperilling his remedies against other parties.

Entertaining an opinion adverse to the defendant on the questions thus far discussed, I do not deem it necessary to consider the further question, whether an offer of compromise, under this section, in order to be available, must be made in behalf of all the defendants, or of all the defendants who have appeared and defended, or of all the defendants except those as to whom the cause is in a situation to perfect judgment. There are many considerations in favor of such a construction, which did not strike me so forcibly when the question was first presented.

I think the decision of the motion at special term was right, and that the order should be affirmed, with $10 costs.

Order affirmed.  