New York, Pennsylvania & Ohio Railroad v. Clark ( 1896 )

By the Court.

In an action for the recovery of money only, against two or more defendants, either one of such defendants has the right, under section 5140, Revised Statutes, to offer in writing before trial to allow judgment to be taken against such defendant for a sum named in such offer, and upon a refusal to accept such offer, and a failure to recover more than was offered, such defendant is entitled to have judgment rendered against the plaintiff in his favor for his costs from the time of such offer. In such case judgment should be rendered against both defendants for the amount of the verdict and costs up to the time of. the offer and judgment for the remainder of the costs against the defendant who made no offer, and judgment against the plaintiff in favor of the defendant who made such offer for his costs from the time of such offer.

Thejudgment against the N. Y. P. & O. company should be affirmed. The judgment against the N. Y. L. E. & W. company for the amount of the verdict should be affirmed, and the judgment against said last named company for costs should be reversed, and the costs should be divided, and so much thereof as accrued before said offer was made should be adjudged against said company, and said company should recover judgment against the plaintiff below for its costs which accrued after said offer was made, and she should pay the costs by her made from the time of said offer, unless she can compel the other defendant to pay the same.

Judgment accordingly.