8 How. Pr. 240 | N.Y. Sup. Ct. | 1853
The question of irregularity depends on the effect of the offer made by the defendant on the 19th of May. By the 385th section of the Code of 1851, the defendant may at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken, against him, for the sum or property, or to- the effect therein, specified, with costs. If the plaintiff accept the offer, and give-notice thereof in writing within ten days, he-may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk must thereupon enter-judgment accordingly. This offer gave to the plaintiff" ten days to make up his mind whether to accept it or not, and an absolute right, within that time, to judgment according to the terms of the offer, on complying with the provisions of the- section. Pomeroy agt. Hulin and Beebe, (7 How. Pr. Rep. 162.) This right of the plaintiff is inconsistent with a co-existing right in the defendant, to take any steps in the action adverse to the plaintiff, contrary to the offer. The offer amounts to a written stipulation on the part of the defendant, waiving all right to proceed in the action for the term of ten days, or until the-plaintiff makes his election to reject the offer. This election cannot be made by parol so as to be binding on the plaintiff and deprive him of his rights to accept the offer and give notice thereof in writing within the
As the defendant’s offer was not made until after the plaintiff had noticed the cause for trial it could not deprive him of the right of going to trial on his notice, the same as if no offer had been made, (7 How. Pr. Rep. 163,) but if the plaintiff chooses to entertain and act upon the offer the defendant is •bound by it. The defendant’s order to dismiss the plaintiffs’ complaint, obtained by.him within ten days after his offer, was therefore irregular and must be set aside; but as the defendant’s attorney may have been in some measure misled into preparing to attend the circuit, by the declaration of the plaintiffs’ attorney, at and immediately after the service of the defendant’s offer, the motion is granted without costs.