Morgan, J.
In this case the plaintiff is entitled to full costs, as the judgment recovered is more favorable than the offer. (Ruggles et al. agt. Fogg, 7 How. 324; Schneider
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agt. Jacobie, 1 Duer, 694.) The defendant cannot make his answer subsequently served, a part of his offer, so as to change the condition of the parties at the time of the offer. (See 8 How. Pr. R. 240.) He should have offered to allow plaintiff to take judgment over and above all set-offs and counter-claims, or he should have renewed his offer when he served his answer. When the offer is served with the answer or subsequent thereto, I am inclined to agree with the defendant's counsel, that an acceptance and consequent judgment will extinguish all claims involved in the issue to be tried.
An order may be entered with the clerk of Jefferson county setting aside the taxation, and directing the clerk to tax the costs to the plaintiff. As the question is still one of doubt and difficulty, no costs will be allowed to either party on this motion.
From this decision the defendant appealed to the general term in the fifth district, and the cause was argued at the October term, 1865, and the decision of the special term affirmed. No written opinion was delivered.
Mullin, Bacon and Morgan, Justices.