Section 738 of the Code of Civil Procedure provides for an. offer “to allow judgment to be taken * * * for a sum therein specified, with cosis.” It also provides, viz.: “If the plaintiff within ten days thereafter serves upon the defendant’s attorney a written notice that he accepts-the offer, he mayfilethe summons, complaint, and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly.” As the offer of judgment was served by mail, the plaintiff had 20 days from the time-of service in which to determine upon the acceptance or non-acceptance, and. to serve upon defendants’ attorneys “written notice that he accepts the offer.” Pomeroy v. Hulin, 7 How. Pr. 161. He was then authorized to file the summons,, complaint, and offer with proof of acceptance; and it is further provided in that section that “thereupon the clerk must enter judgmentaccordingly.” In Walker v. Johnson, 8 How. Pr. 241, it was said, viz.: “This right of the plaintiff is inconsistent With the co-existing right in the defendant to take any steps in the action adverse to the .plaintiff, contrary to the offer. The offer amounts to a written stipulation on the part of the defendant, waiving all right'to proceed in the action for the term of ten days, or until plaintiff makes his election to reject the offer.” In that case it was said: “The defendant’s order to dismiss the plaintiff’s complaint, obtained by him within ten days after his offer, was therefore irregular, and must be set aside.” The case of Hawley v. Davis, 5 Hun, 642, does not reach the question made here. In that case the defendant served upon the plaintiff’s attorney an offer of judgment on the 9th of June, and on the 15th of June plaintiff took an inquest and entered judgment for the amount claimed, with costs; and it was held in that case “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.” In that case the offer never became efficient by an acceptance, nor by the expiration of the time within which it might have been accepted. In Herman v. Lyons, 10 Hun, 111, an offer of judgment was served on the.7th of February, and on the 9th of February the cause was regularly called in its order on the calendar, and an inquest taken therein, and the costs accruing subsequent to the offer taxed in plaintiff’s favor; and it was held “that, as ten days had not elapsed from the service of the offer of judgment to the time of trial, the plaintiff was entitled to disregard the offer, and to tax the costs thereafter accruing.” In the course of the opinion it was said: “The plaintiff could treat the offer as a nullity, which he did do, and proceed with his action.” In the case in hand, the plaintiff did not treat the offer as a nullity, and during the time allowed by statute for the acceptance of the offer made her election to accept, and did accept, and with the offer, with the acceptance and proof thereof and other proper papers, applied to the clerk, who entered judgment in accordance with the offer. The question here presented was considered in Douglass v. Macdurmid, 2 How. Pr. (N. S.) 289, and it was there said that, where “the defendant serves an offer of judgment for a specific sum, with interest and costs, and after the offer is made both parties serve notice of trial, after which time the plaintiff accepts the offer, he is only entitled to costs before notice of trial,— fifteen dollars.” In the course of the opinion in that case it was said: “The *263notice of trial served by the defendant does not aid the plaintiff, because the offer prevented the defendant from moving the case for ten days after it was served, ( Walker v. Johnson, 8 How. Pr. 240;) and the notice served by the defendant became nugatory on the acceptance of the.offer.” The rule stated in that case is satisfactory. Order of the special term reversed, with $10 costs and disbursements, and the motion granted, so far as it asks to strike out the item of $15 after notice, and in other respects denied, without costs to either party. All concur.