Riggs v. Waydell , 56 How. Pr. 247 ( 1879 )

Barrett, J.

There is no material distinction between this case and McFarren agt. St. John (14 Hun, 387). The declination was superfluous and left the matter precisely as though it had not been served. There is no such thing as creating an offer by waiver; either there was an effective offer or there was not. The plaintiff could not waive it into validity as against the defendants. True, he called it the defendants’ offer, and so it was the defendants’ invalid offer. It comes to this: If the defendants desired the benefit of the statute they were bound to do just what the statute pointed out. This they did not do, consequently the cause proceeded without a statutory offer. To talk of amending so as to alter the present legal status is to misconceive the office of amendment. Besides, that would be to make now and for the first time a good offer. That being so, by what authority would we deprive the plaintiff of his statutory right to accept within ten days from the present date ? The motion to amend by adding the affidavit of authority required by section 740 of the Code of Civil Procedure and for an allowance must be denied, but under the circumstances without costs.