Monroe County NyArchives Court.....Mock, Louis Vs. Peter Saile 1889
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Source: Reports Of Cases - New York
Written: 1889

Fifth Department, March Term, 1889.

LOUIS MOCK, Respondent, v. PETER SAILE, Appellant.

Offer of judgment—sections 2892 and 3070 of the Code of Civil Procedure, only 
apply to actions pending in the courts respectively referred to in said 
respective sections.

In an action, brought in the Municipal Court of Rochester, the defendant 
appeared and made a written offer that judgment might be taken against him for 
thirty dollars, with costs, which the plaintiff did not accept.

Upon an appeal from a judgment, entered in the Municipal Court in favor of the 
plaintiff for the sum of $141.25, a new trial was had in the County Court and a 
verdict rendered in favor of the plaintiff for the sum of thirty dollars only; 
costs were taxed in favor of the plaintiff and inserted in the judgment.

Upon an appeal from an order denying the defendant's motion for a retaxation of 
costs the plaintiff insisted that his offer, which was made under section 2892 
of the Code of Civil Procedure, was a part of the papers and proceedings 
properly returned by the Municipal Court of Rochester to the County Court, and 
remained in full force, and was to be considered and to have the same effect on 
the question of costs as if made after appeal and in compliance with section 
3070 of the Code of Civil Procedure, as amended by chapter 522 of the Laws of 
1885.

Held, that the provisions contained in the said sections as to making offers of 
judgment were applicable only to actions pending in the courts referred to 
therein.

That there was nothing in section 3070 to indicate that an offer, which had been 
made in the Municipal Court of Rochester, should remain in force, or be of any 
value to the defendant in this action, after the same had been removed by appeal 
to the County Court for retrial.

Appeal from an order of the Monroe County Court, which was entered in the office 
of the clerk of the county of Monroe on the 18th day of September, 1888, denying 
the defendant's motion for a retaxation of the costs in an action originally 
commenced in the Municipal Court of Rochester.

The recovery in that court was for the plaintiff in the sum of $141.25, from 
which the defendant appealed, and in the County Court the verdict was for the 
sum of thirty-five dollars only. The action was founded upon contract for the 
recovery of money only. Costs were taxed in the plaintiff's favor and inserted 
in the judgment-roll.

P. B. Hulett, for the appellant.

S. D. Bentley, for the respondent.

Barker, P. J.:

The defendant appeared in the Municipal Court on the return of the process and 
made a written offer that judgment might be taken against him for thirty-five 
dollars, with costs, which the plaintiff did not accept. On the trial in the 
County Court the plaintiff had a verdict for thirty-five dollars only.

The right of the defendant in an action in the Municipal Court to make an offer 
of judgment is given by section 2892 of the Code of Civil Procedure, and the 
effect of it is, if the same is not accepted, that the plaintiff shall not 
recover costs from the time of service of the offer, if he fails to obtain a 
more favorable judgment. This is the only provision on the subject, and the 
section of the Code in which it appears is found in chapter 19, entitled "Courts 
of Justices of the Peace and proceedings therein." This and other sections of 
that chapter are applicable to actions commenced in the Municipal Court of 
Rochester. The appellant insists that this offer was a part of the papers and 
proceedings properly returned by the justice to the County Court, and remains in 
full force, and is to be considered and to have the same effect on the question 
of costs as if made after appeal, in pursuance and in compliance with the 
provisions of section 3070, as amended by chapter 522 of Laws of 1885. We cannot 
concur in giving these sections the construction contended for by the appellant. 
The provisions contained in the said sections as to making offers of judgment 
are applicable only to actions pending in the courts referred to, respectively. 
There is noticing in section 3070 indicating that an offer which may have been 
made in the court below shall remain in force or be of any avail to the 
defendant in the action after the same has been removed by appeal to the County 
Court for retrial. It is expressly provided in that section that "upon an 
appeal, provided for in this article, * * * either party may, within fifteen 
days after service of the notice of appeal, serve upon the adverse party, or 
upon his attorney, a written offer to allow judgment to be rendered in the 
appellate court in favor of either party for a specified sum." Clearly 
indicating that the offer must be an original one; and, as further indicating 
that such is the meaning of the section, a right is also given the respondent to 
make an offer, which he did not have in the court below. The concluding 
paragraph of the section declares the effect of the omission by either party to 
make and serve an offer as provided by that section, and it is expressed in 
these words, viz: "The party in whose favor the verdict, report or decision in 
the appellate court is given shall be entitled to recover his costs upon the 
appeal." The defendant not having made an offer of judgment in the County Court, 
where he demanded a retrial, he is required to pay costs, as the plaintiff had 
the verdict.

The order appealed from should be affirmed, with ten dollars costs.
 
Dwight and Childs, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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