Guttroff v. Wallach , 51 N.Y. St. Rep. 495 ( 1893 )

McGown, J.

The plaintiff had ten days after the service of the second offer of judgment, made on December 2, within which to serve a written notice of his acceptance of said offer, and upon such acceptance he could have entered his judgment for the amount of his first cause of action, seventy-four and eighty one-hundredth dollars ($74.80), interest thereon and costs up to the time of the offer, without application to the court, and without a trial.

The case appeared upon the day calendar for December 6th.

Plaintiff answered ready, and insisted upon the case being tried, and the case was actually tried on December 12th, having appeared daily upon the day calendar, and a verdict was rendered for the plaintiff on his first cause of action, and for the defendant on the second cause of action.

The plaintiff, by proceeding to a trial, did not obtain a more favorable judgment than that offered him by the defendant.

He evidently delayed the acceptance of the second offer of judgment until his full time for acceptance had expired, and after verdict rendered, trusting to obtain a more favorable verdict than that rendered.

In all cases of offer of judgment, a plaintiff has ten days wherein to elect whether he will accept it or not, or he may proceed to trial.

By proceeding to trial, before his time to accept had expired, he in effect elected not to accept the offer, but evidently intended to take the chances of obtaining upon a trial a more favorable judgment than that offered.

We do not think that it was intended by or that it is within the meaning of section seven hundred and thirty-eight (§ 738) of the Code, that a plaintiff should have the right to avail himself of the benefit of an acceptance of an offer of judgment and a trial at the same time.

By electing to bring on the cause for trial before his time to accept had expired, he waived all rights he may have had under the offer.

The plaintiff not having obtained a more favorable judgment than that offered before trial, is not entitled to any more costs than he would have been entitled to had he accepted the offer, viz., costs only up to the time of the offer, December 2d, while the defendant is entitled to costs from that time, December 2d.

1 The order appealed from must be modified so as to conform to above opinion, and as so modified will be affirmed, with costs.

Ehrlich, Ch. J., and Fitzsimons, J., concur.