Freudenheim v. Raduziner , 31 N.Y.S. 194 ( 1894 )

Yak Wyok, J.

The alleged cause is goods sold and delivered to defendant of the agreed price of $728.97, and the answer specifically admits this, and alleges that ■ defendant paid plaintiff on account thereof $560, by her certain promissory notes. The defendant, with her answer, served on October 20, 1894, a written offer to allow judgment for $170, interest, costs and disbursements, and the plaintiff thereafter, on October twenty-fourth, served a written acceptance of this offer, and upon November second he entered judgment upon the offer and his acceptance thereof for $192.28. However, before entry of this judgment plaintiff obtained, on November first, an order permitting him to enter judgment for $170, with interest and costs, and to continue his action for the recovery of the balance. Appellant contended at trial that this offer of judgment, acceptance thereof and the entry of judgment thereon was a bar to plaintiff’s recovery of the balance of his claim in this action, and this contention seems correct, for the court had no right to grant this order of severance upon the facts as disclosed in the papers upon which it was obtained. Appellant’s counsel contends “ that if defendant’s contention be sustained, the result will necessarily be that plaintiff will lose $550 of a debt admitted to be just, and for which plaintiff holds defendant’s notes ” (this is not so, for he still» can sue on the notes) “ and in addition, that the plaintiff will be mulcted in a large sum for costs:” but even so, this will be due to the mistaken practice of his counsel, ana,'moreover, if plaintiff’s contention is sustained, the defendant will be mulcted in costs, and not because of any mistake made by her or her counsel.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Conxan, J., concurs.

Judgment reversed and new trial granted, with costs to appellant to abide event.