Opinion
May, 1904.
J.D. Bell, for the appellant.
John L. Crandell and John M. MacDonald, for the respondent.
In determining the effect of an offer to compromise the condition of the pleadings at the time the offer is served must be considered. ( Tompkins v. Ives, 36 N.Y. 75.) The amount of the judgment rendered in favor of the plaintiff was ninety-seven cents less than the offer of judgment. It is claimed by the plaintiff that in addition to the money judgment recovered by him he has also extinguished the defendant's counterclaim, and that, therefore, the judgment recovered upon the trial is more favorable to him than the offer. (15 Ency. Pl. Pr. 56.)
The defendant contends that all the items of her counterclaim are so connected with the items of the plaintiff's complaint that in determining the balance due the plaintiff such items constituting her counterclaim could have been proven under a general denial, and that had the plaintiff accepted her offer of judgment, such counterclaim would have been extinguished. The defendant is mistaken in her claim at least to the extent of the item for wood claimed to have been sold by the defendant to the plaintiff about a year prior to the time when the written contract between the plaintiff and defendant was made and prior to the transactions upon which the plaintiff's suit is based. Such item appears to arise from an independent contract. Claims or demands arising from distinct and independent contracts will sustain separate actions or counterclaims, and are not affected by actions between the same parties arising from other independent contracts or transactions. ( Secor v. Sturgis, 16 N.Y. 548.)
We are of the opinion that the plaintiff obtained a more favorable judgment than that offered by the defendant. The order should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.