Kiernan v. Agricultural Insurance

Hardin, P. J.: It is apparent from the pleadings in the action as well as from the concessions made by the respective counsel upon the argument, that this was an equitable action. The general rule is that, in equitable [28] actions where a discretion as to costs has been exercised as a part of the action of the trial court or of a referee, the discretion cannot be reviewed at Special Term. The party seeking to have the discretion exercised at the Trial Term altered or changed should appeal. (Olcott v. Maclean, 11 Hun, 394 ; Woodford v. Bucklin, 14 id. 444; McLean v. Stewart, Id. 472;. House v. Eisenlord 30 id. 90; Rosa v. Jenhins, 31 id. 384; West v. City of Utica, 71 id. 540; Kahn v. Schmidt, 83 id. 541; Schulte v. Lestershire Boot & Shoe Compamy, 88 id. 226 and cases cited in the opinion at page 229 ; Heath v. N. Y. B. L. B. Co., 146 N. Y. 260.) It is contended in behalf of the plaintiffs that the action of the trial court in awarding costs to the plaintiffs should control, and that the clerk upon presentment of the decision of the trial court should have taxed a full bill of costs in the action. We think otherwise. Section 138 of the Oode of Civil Procedure provides that a defendant may “ before the trial, serve upon the plaintiff’s 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.” In the case in hand an offer was made, and under the language just quoted the plaintiffs were entitled to costs to the time of the offer. ' The section further provides that “ 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 * * * enter judgment accordingly.” The plaintiffs failed to avail themselves of this provision, as they did not accept the offer. We must, therefore, turn, to- the remaining portion of the section to determine the status of the parties after the failure of the plaintiffs to accept the offer tendered. The further provision of the section is as follows: “ 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.” The language of the section applied • to the case in hand excludes the plaintiffs from the right to recover ■costs after the offer was made, inasmuch as the plaintiffs failed “ to obtain- a - more favorable judgment.” It must be understood that, when the court ordered judgment for the plaintiffs with costs, it was such costs as are authorized by the statute, read in connection [29] with the offer served in the action, and the recovery allowed. The farther provision of the section also applies a rule as to costs. The words “ but must pay costs from that time,” casts upon the plaintiffs the burden of the costs that accrued subsequent to the offer. The words of the section seem sufficiently broad to apply to the case in hand, and to require us to hold, that the plaintiffs “must pay costs from ” the time the offer was served. Such seems to have been the result arrived at at the Special Term. However, it is contended strenuously by the learned counsel for the appellants that section 738 does not apply to an equitable action. The learned counsel for the respondent, however, contends that the court has no discretion in the matter, and in support of his contention refers us to Bathgate v. Haskin (63 N. Y. 261) ; Lumbard v. S. B. & N. Y. R. R. Co. (62 id. 290); Hunt v. Chapman (51 id. 555); Pfister v. Stumm (7 Misc. Rep. 526)Dowd v. Smith (8 id. 619; S. C., affd., 80 Hun, 604). Very extensive argument is made by the learned counsel for the appellants to distinguish the cases, and he asserts the conclusion that section 738 does not apply to an equitable action. We think his contention must fail. The question seems to be expressly adjudicated in Singleton v. Home Ins. Co. (121 N. Y. 644) in which case the section was quoted and construed, and near the close of the opinion it was said: “We think that the defendant was entitled to its costs against plaintiff arising subsequent to the offer, on the ground that the plaintiff failed to obtain a more favorable judgment than was offered him. We also think that the directions of tire statute are explicit, and that they refer to actions which are in the nature of equitable actions as well as to actions at law.” Reading section 1022 of the Code of Civil Procedure, as amended to take effect the 1st day of January, 1896, so far as it relates to the discretion of the court, in connection with section 738 and section 3262, we think it cannot be held to change the rule laid down in the case of Singleton v. Home Ins. Co. (supra). The foregoing views lead to the conclusion that the order made at Special Term should be sustained. All concurred. Order affirmed, with ten dollars costs and disbursements.