Schulte v. Lestershire Boot & Shoe Co.

HARDIN, P. J. Pursuant to a contract entered into between the plaintiff and the Lestershire Boot & Shoe Company, the plaintiff performed work, labor, and services, and furnished materials necessary to erect a building, upon the property of the respondent, and after the completion of the building, and on or about the 12th of July, 1892, the plaintiff filed a notice of lien in writing in the office of the clerk of the county of Broome, where said premises were situated, and thereafter commenced this action to enforce the lien. The Lestershire Boot & Shoe Company answered the complaint, and the issue joined was referred and tried, and the referee in his report finds that, January 81,1894, the defendant Lestershire Boot & Shoe Company served upon the plaintiff’s attorney an offer “to pay into court the sum of one thousand ($1,000) dollars and interest thereon from the 12th day of July,'1892, in discharge of plaintiff’s lien.” The referee, as a conclusion of law, found, viz.: “The defendant, the Lestershire Boot & Shoe Company, is indebted to the plaintiff herein in the sum of $1,000, with interest thereon from July 12, 1892, amounting altogether at this date to $1,128.33.” The referee ordered judgment in accordance with his findings, “with the costs of this action.” Plaintiff, having entered a judg [664] ment for full costs, was met by a motion to retax the costs, and to disallow any costs to the plaintiff after the delivery of the offer, and by the claim of the defendant that it was entitled to costs after the refusal to accept the offer, inasmuch as the recovery had not been more favorable than the offer made by the Lestershire Boot & Shoe Company. If the plaintiff had accepted the offer, he would have received $1,000 and interest from July 12th. By the decision of the referee he received only $1,000 and interest from the 12th of July, and the recovery, therefore, is not any more favorable than the offer. The plaintiff is not entitled to add the accumulated interest from the time that the offer might have been accepted to the time of the recovery for the purpose of claiming that the recovery is more favorable than the offer. 2. In chapter 342 of the Laws of 1885 it is provided, in section 14, that: “Costs and disbursements, except in courts not of record, in which they shall be the same as allowed in civil actions in such courts, shall rest in the discretion of the court, and may be awarded to or against the plaintiff or plaintiffs, defendant or defendants, or any or either of them as may be just and equitable except as provided in section 19 of this act, and shall be included in the judgment recovered therein. * * * When an action is brought in a court of record such direction shall be made in the discretion of the court, as to the payment of costs as shall be just and equitable, and the judgment entered shall specify to whom and by whom the costs are to be paid.” The general rule laid down in section 14 is to be construed and applied in harmony with the rule which is prescribed in section 19. In turning to section 19, we find it authorizes the owner or owners, in writing, to offer to pay into court any amount stated in the offer. It is further provided, in this section: “If the offer is accepted in writing within ten days thereafter, the court in which the action is pending may make an order that * * the lien or liens be discharged. * * * In case the offer shall not be accepted within ten days, and the plaintiff fails to recover any more favorable judgment against the property, he shall pay any costs in the action incurred by the owner from the time of the offer.” Applying the rule laid down in section 19, we think it is apparent that, inasmuch as the plaintiff did not recover any more favorable judgment than such a one as was offered to him, he is not entitled to costs subsequent to the time when he might have accepted the offer, and, on the contrary, “he should pay any costs in the action incurred by the owner from the time of the offer.” Hall v. Dennerlein (Com. Pl.) 14 N. Y. Supp. 796; Pfister v. Stumm, 7 Misc. Rep. 526, 27 N. Y. Supp. 1000; Mull v. Jones (Com. Pl.) 18 N. Y. Supp. 359; Budd v. Jackson, 26 How. Prac. 398; Johnston v. Catlin, 57 N. Y. 652. 3. We think that section 14, conferring discretion upon the court as to the costs, must be construed with provisions in section 19. When so construed, it must be assumed that the referee, when he awarded the costs to the plaintiff, only intended plaintiff should receive such costs as he was entitled to under the statute. It was not within the discretion of the referee to assume power to overrule the intention of the statute. Our attention is called to Woodford v. Bucklin, 14 Hun, 444. In that case it was held by this court that, [665] if the referee had exercised his discretion in an equity action, the same could not be changed by the special term. The doctrine of that case was approved in Rosa v. Jenkins, 31 Hun, 384; Couch v. Millard, 41 Hun, 215; Dilts v. Sweet (Sup.) 21 N. Y. Supp. 58. In the case in hand the referee had no power to overrule the express provisions of the statute. Chapin v. Churchill, 12 How. Prac. 367. In the latter case it was held that the court had no right to disregard the statute relating to costs. It was said, in Cythe v. La Fontain, 51 Barb. 195, the court is not authorized to deal with the question of costs except in accordance with the provisions of the statute. We tbiulr the decision reached at the special term is correct. Order affirmed, with $10 costs and disbursements. All concur.