Hirschspring v. Boe

McAdam, Ch. J.

The plaintiff has recovered $51.01, and "would have been entitled to foil costs but for the offer of judgment. The right of parties to costs is determined as of the time of trial. For example : If a plaintiff sues for $49, he is not entitled to costs; but if a.defense is interposed and the claim, with interest added to the time of trial, aggregates $50, and the plaintiff has a recovery for that 'amount, he is entitled to a full bill of costs. Upon this principle and in the light of section 738 of the Code,* the plaintiff became entitled to $15 costs np to the time of the offer, and the defendant to the costs thereafter (Burnett v. Westfall, 15 How. Pr. 430; Magnin v. Dinsmore, 15 Abb. Pr. N. S. 331; s. c., 46 How. Pr. 297).

As to the allowance, the case of Magnin v. Dinsmore (47 How. Pr. 11) decides that where after issue joined, the defendant serves an offer to allow judgment, and plaintiff fails to obtain a more favorable recovery, the defendant is not entitled to an allowance. If this decision denies the power of the court to grant an allowance where an offer has been made and rejected, it cannot be approved. There is nothing in section 3253 of the Code that imposes any such limitation of power, nor is there anything in Penfield v. James (56 N. Y. 659) that necessarily implies such a limitation. If the offer is not made until the issue is nearing trial? that circumstance may have its influence on the question whether an allowance ought to be granted to the defendant? because his right to costs commences to run only from the time the offer is made (Code. Oiv. Pro. § 738).

In this case an allowance was granted ; the court had the power to award it (Commissioners of Pilots v. Spofford, 3 Hun, at p. 59), and the clerk could not review the exercise of discretion by the court; so that the allowance isa proper item to go in the judgment.

The clerk will be directed to retax in accordance herewith.

* Code Civ."Pro. § 738, provides: “The defendant may, before the trial, serve upon the plaintiffs attorney, a written offer, to allow judgment to be taken against him, for a sum or property, or to the effect, therein specified, with costs......If the plaintiff, within ten days thereafter, serves upon the defendant’s attorney, a written notice that he accepts the offer, he may file the summons, complaint, and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If notice of acceptance is not thus given, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment he cannot recover costs from the time of the offer, but must pay costs from that time.’’