(9 App. Div. 398.)

#### WARNER v. BABCOCK.

(Supreme Court, Appellate Division, Fourth Department.

October 16, 1896.)

•Costs—Offer of Judgment—Trial.

Under Code Civ. Proc. § 1018, authorizing the referee, “on the trial” of an issue of fact, to allow amendments of pleadings, an amendment can only be allowed after commencement of the trial, and therefore an offer of judgment, not made until after allowance of an amendment, is not made “before the trial” (Code Civ. Proc. § 738), so as to enable defendant to escape liability for further costs if a more favorable judgment is not recovered by plaintiff. Ward, J., dissenting.

Appeal from special term, Steuben county.

Action by Oliver M. Warner against Francis Gr. Babcock. From an order denying a motion for retaxation of costs, and to allow defendant certain costs to which he claims to have become entitled subsequent to the making of an offer of judgment, defendant appeals. Affirmed. •

The opinion of Mr. Justice WERNER, was as follows:

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 a question arose as to the sufficiency of defendant’s pleading. He desired an amendment, but was in doubt whether the referee had the 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 counsel for the plaintiff. The amendment was therefore made, and an adjournment of the cause was taken, upon *494defendant’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 1st day of February. I am inclined to think that the trial was commenced. The referee had no power to grant an amendment until the ease was moved before him. Code Civ. Proc. § 1018, 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 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, Code Civ. Proc., which has been construed to mean that the offer must be made at least 10 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 *f.*Matthews (Sup.) 15 N. Y. Supp. 510. The plaintiff’s counsel was not bound to return it. Walker v. Chilson, 65 Hun, 529, 20 N. Y. Supp. 527. Defendant’s motion for a retaxation of plaintiff’s costs and a taxation of his own costs must, therefore, be denied, with $10 costs of this motion.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ.

Dolson & Dolson, for appellant.

De Merville Page, for respondent.

PER CURIAM.

Order affirmed, with $10 costs and disbursements, on the opinion of WERNER, J., delivered at special term. Decision made by the concurrence of HARDIN, P. J., and FOLLETT, ADAMS, and GREEN, JJ. WARD, J., dissenting.