Astor v. Palache

J. F. Daly, J. An offer to allow judgment under section 385 of the Code may be made in an action to foreclose a mortgage on real property (Bettis agt. Goodwill, 32 How. Pr. R., 137; Penfield agt. James, 56 N. Y., 659); and such an offer will cut off the plaintiff’s right to an extra allowance under section 309 of the Code (Penfield agt. James, 56 N. Y., 659). The offer must be in writing, and made at least ten days before the trial or verdict (Pomeroy agt. Hulin, 7 How. Pr. R., 161; Walker agt. Johnson, 8 id., 240). In the present case defendant served no written offer, but made a tender of the amount due on the mortgage,-with costs to date, while the reference to compute amount due is pending. A tender will not cut off the right to an extra allowance under section 309 of the Code in a foreclosure suit, the statute applying only to actions at law (2 R. S., 553; N. Y. Fire Co. agt. Burrell, 9 How. Pr. R., 398 ; Barton agt. Cleveland, 16 id., 364). 232 On the merits of plaintiff’s application for an extra allowance : The plaintiff is certainly entitled to an allowance, a great part of the labor for which it was intended to be compensation having been performed. As, in respect of the other allowance (sec. 308 of the Code), a difference of one-half in the amount allowed is made in cases where the action is settled before judgment, there would seem to be reason for making a distinction on that ground in this case; and I therefore order an extra allowance of one and a quarter per cent, under section 309 of the Code, on the whole amount of principal and interest; this being in addition to the half rates allowed by section 308.