Ruggles v. Fogg, 7 How. Pr. 324

Ruggles v. Fogg

7 How. Pr. 324 | N.Y. Sup. Ct. | 1852

Harris, Justice.

It is conceded that the criterion by which this question is to be determined is, whether the plaintiffs have obtained “ a more favorable judgment ” than they would have obtained by accepting the offer. If they have, they are entitled to costs after the offer, as well as before. If not, the defendant is entitled to costs against them. The offer was, that the plaintiffs might take judgment for $230. That sum, with interest from the 3d of March 1851, when the offer was made, to the time of the trial, would exceed the amount of the verdict, and of course, if there were nothing else in the case, the plaintiffs would have failed to recover a more favorable judgment.

*325But the plaintiffs insist, that had they accepted the offer, the defendant would still have retained his right of action against them for his set off. I do not see why this is not so; and if it be so, then the plaintiffs, having extinguished the defendant’s claim, and also recovered a verdict for $241.67, have, in fact, obtained a more favorable judgment than they would, had they accepted the offer. The defendant, probably through inadvertence, omitted to embrace a discharge of his set off in his offer. The plaintiffs are, therefore, entitled to the same costs as though no offer had been made. It is not a fit case to grant costs upon the motion to either part)'-.