Dingee v. Shears

Barnard, P. J.: The right to set off interlocutory costs has been established. (Doe v. Allsop, 9 B. & C., 760 ; Doe v. Carter, 8 Bing., 330.) In cases where the plaintiff was entitled to judgment and the defendant to costs there could be but one record. (3 Wend., 308.) The plaintiff made a suggestion upon the record of the defendant’s right to costs, and if he refused to do so the court would compel it. This was done to avoid circuity. The present case arises under the Code and is new to the old practice. By reason of a failure upon the part of the plaintiff to recover a verdict in excess of an offer made, he was entitled to recover the verdict and the costs up to the date of the offer and must pay costs of the action after the offer. The verdict determined the rights of the parties. The proper way to enter a judgment in such a case is, to suggest the right of the defendant to the costs after offer, as taxed; and when the plaintiff’s claim and costs is greater than the defendant’s taxed bill to deduct the same from the plaintiff’s claim and exter judgment for the balance. This is the rule when a counter-claim less than the plaintiff’s claim is set up. (Code C. P., § 512.) No other rule would work justice. The same vej'dict settles all the rights of the parties, and the judgment should only be for the portion due after set-off of the respective claims. Set-off has always been favored to avoid circuity of action or redress. [212] At the time of the assignment to the attorney by the defendant there was a legal set-off existing and nothing passed by it. The order should therefore be affirmed, with- costs. Dtkman and Cullen, JJ., concurred. Order setting off costs against judgment affirmed, with costs and ■ disbursements.