We concur with the opinion of the Special and that of the General Term, that the offer made by the defendant to allow judgment to be taken was imperfect, because it was not in conformity to the Code, and that there was no waiver of the defect by the notice served by the plaintiff's attorney upon the defendant's attorney, or in any other manner.
We are also of the opinion that if the case was one in which the courts were authorized to allow the defendants to serve the affidavit required nunc pro tunc, it was a matter of discretion with the Special Term, and having once been refused there, as well as by the General Term, no appeal lies to this court. As this relief must be first obtained before the question as to costs arises, the decision of the motion does not determine the right to costs, and make the order appealable, within the cases cited. (See Sturgis v. Spofford, 58 N.Y., 103; Tilton v.Beecher, 59 id., 176; Russell v. Conn, 20 id., 81.)
The appeal should be dismissed, with costs and disbursements.
All concur.
Appeal dismissed. *Page 588