Leslie v. Walrath

Smith, P. J.: Action on a promissory note. The plaintiff claimed to recover •the sum of $275 with interest from the: 4th of September, 1884, besides costs. The defendants set np a counterclaim, and before trial served an offer of judgment “for the*sum of One hundred and •fifty dollars, with costs to date.” The offer was dated. It was not .accepted, a trial was had, and the plaintiff obtained a verdict for the sum of $112.50. 'The plaintiff’s counsel contends that the offer was ineffectual by .reason of the limitation imposed by it in respect to costs, its effect being, if accepted, to subject the plaintiff to the costs of entering judgment upon the offer, and of execution and entering satisfaction. We think he is right m that contention. The statute authorizing the offer provides that it shall allow judgment, u for a sum, or property, or to the effect therein specified, with costs.” (Code of Civil Pro., § 738.) The party making the offer frames it to suit himself. If it does not comply with the statute, in all substantial [19] respects, it is a nullity, and it may be treated as sucli by the party served with it. (McFarren v. St. John, 14 Hun, 387; Riggs v. Waydell, 78 N. Y., 586.) If the party served with a valid offer accepts it, he is entitled to enter judgment upon it, and to tax the costs of the entry upon the party making the offer. But the offer in this case was so framed, as that the plaintiff, if he had accepted it, could have taxed no costs accruing subsequently to the date of the offer. He would have been limited by the terms of the offer. The appellants’ counsel suggest that the words “ to date ” mean the date of the judgment to be entered on the offer. We do not think they are fairly susceptible of the construction. It makes them superfluous and meaningless. But the case is not one for judicial interpretation. The offer should be specific and certain in all material respects. It is also suggested by the appellants’ counsel that the word “costs” used in the offer does not include disbursements. We think otherwise. The word “ costs ” is to be regarded as used in the same sense in the offer as in the section of the Code which authorizes an offer; and there it evidently includes disbursements. The order should be affirmed, with ten dollars costs and disbursements. Haight and Bradley, JJ., concurred. Order affirmed with ten dollars costs and disbursements.