Noonan v. Smith

J. F. Daly, J.

The question as to which party is entitled to costs depends upon the effect to be given to the service of offer of judgment on September 15, 1877. A copy of the offer and of the attorney’s affidavit of authority (Code Civ. Pro. §740) was delivered to and left with the plaintiff’s attorney on that date. But at the same time, the original offer and affidavit were presented to plaintiff’s attorney, who indorsed thereon his admission of “ due service of a copy.” He now objects that a copy and not the original was served upon liim, and that the offer was ineffectual on that account.

If it be n.ecessary to serve the original offer and affidavit, it seems to have been waived in this case. Plaintiff’s attorney was presented with the original and the copy. He kept the- copy and returned the original with a written admission thereon that a copy had been duly served. Such was the transaction as appears by the record before us. Plaintiff cannot be permitted to object that service was not properly made. The order should be reversed, and taxation and allowance of costs by clerk, in favor of defendant, should be affirmed.

Daly, Ch. J., concurred.

On appeal this decision was affirmed by the court of appeals in 84 N. Y. 672, without opinion.