Opinion
October Term, 1896.
C.A. Dolson, for the appellant.
De Merville Page, for the respondent.
Order affirmed, with ten dollars costs and disbursements on the opinion of WERNER, J., delivered at Special Term.
All concurred except WARD, J., dissenting.
The following is the opinion of WERNER, J.:
Defendant's right to a retaxation of plaintiff's costs and to an allowance of costs on his own behalf depends upon the question whether the trial of this action was actually commenced before the referee on the 1st day of February, 1894. If it was not actually commenced at that time then defendant's offer of judgment, made on the 14th day of February, 1894, was perfectly good, and he is entitled to have his motion granted. If, on the other hand, the trial was commenced on said date, then defendant's offer was a nullity, and the plaintiff's counsel had a right to treat it as such and to tax a full bill of costs. There is really no substantial dispute as to what took place before the referee. It appears that the referee designated February 1, 1894, as the time for the hearing of the reference; that on that day the attorneys for both of the parties attended before the referee; that a question arose as to the sufficiency of defendant's pleading; he desired an amendment, but was in doubt whether the referee had power to grant the same, or whether it would be necessary to make a motion before the court at Special Term. The referee resolved this doubt in defendant's favor by asserting the right to grant the amendment, and this position was acquiesced in by the counsel for the plaintiff. The amendment was, therefore, made, and an adjournment of the cause was taken upon defendant's motion to the 27th day of February, 1894. The plaintiff recovered judgment for a less sum than that stated in defendant's offer of judgment, and, if his offer is held good, plaintiff was not entitled to the costs which accrued after the offer was made, and defendant is entitled to tax costs from that time. As stated before, the question whether the offer is good depends upon the question whether the trial was commenced before the referee on said first day of February.
I am inclined to think that the trial was commenced. The referee had no power to grant an amendment until the case was moved before him. Section 1018 of the Code of Civil Procedure gives a referee the right to exercise, upon a trial before him, the same power as the court "to allow amendments to the summons or to the pleadings." The right of a referee to grant a motion to amend pleadings in a case pending before him is derived from this statute. He has no power to consider or determine such a motion until the action is before him. By the very language of this statute his powers with reference to amendments are limited to proceedings "upon the trial of an issue of fact."
The trial having been commenced, the offer which was made did not conform to the practice prescribed in section 738 of the Code of Civil Procedure, which has been construed to mean that the offer must be made at least ten days before the time of trial. ( Herman v. Lyons, 10 Hun, 111.) The offer made and served by the defendant being a nullity, the plaintiff's counsel had a right to disregard it. ( Sares v. Matthews, 39 N.Y. St. Repr. 921.) The plaintiff's counsel was not bound to return it. ( Walker v. Chilson, 65 Hun, 529.)
Defendant's motion for a retaxation of plaintiff's costs, and a taxation of his own costs must, therefore, be denied, with ten dollars costs of this motion.