Summary
In Tompkins v. Ives (36 N.Y. 75, 76) it was said: "The import and effect of the offer must be determined by the condition of the pleadings at the time it was made."
Summary of this case from Shepherd v. MoodheOpinion
January Term, 1867
Brown Beach, for the appellant.
Moore McCartin, for the respondent.
The import and effect of the offer must be determined by the condition of the pleadings at the time it was made. It did not mean one thing then and another four days afterward. The answer was not designed to vary the terms of the previous proposition, but to take issue on the plaintiff's demand, and to introduce cross-claims on the part of the defendant, for the purpose of reducing or defeating a recovery, if no notice was given within the ten days allowed by law. The intermediate pleading was, in its nature, provisional; and a notice of acceptance, whether served on the first or the tenth day, could apply only to the original offer. It would operate upon the plaintiff's claim, but not upon independent causes of action existing in favor of the defendant. The litigation resulted in a recovery, more favorable to the plaintiff than the offer. The nominal amount was less than the sum proposed; but in determining the right to costs, the plaintiff is entitled to the benefit of the counterclaims which the defendant afterward elected to interpose, and which are now extinguished by the judgment. (Code, § 385; Fieldings v. Mills, 2 Bosw., 489; Ruggles v. Fogg, 7 How., 324; Budd v. Jackson, 26 id., 401; Schneider v. Jacobie, 1 Duer, 694.)
The judgment should be affirmed.
BOCKES, J., also read an opinion for affirmance. All the judges concurred except HUNT, J., who was for reversal.
Judgment affirmed.