#### ROWERDINE v. BITNER.

(Supreme Court, General Term, Fifth Department.

December 2S, 1895.)

J udgment—Reversal.

An order denying plaintiff’s motion to set aside a judgment by default for defendant on appeal to the county court from a judgment of the municipal court for plaintiff will be reversed: it appearing that plaintiff’s showing of excuse for nonappearance was not considered, but that the court based its denial of the motion on the ground that defendant was entitled to a reversal for the reason that the municipal court had given judgment for plaintiff for costs when his recovery had been less than defendant’s offer of judgment, and it further appearing that defendant’s offer of judgment was in fact less than plaintiff’s recovery, and no other error of the municipal court appearing to uphold said order.

Appeal from Monroe county court.

Action by William H. Rowerdink against William H. Bitner. From an order denying a motion t® vacate a default for defendant, plaintiff appeals.

Reversed.

Argued before LEWIS, BRADLEY, WARD, and ADAMS, JJ.

John B. Kiley, for appellant.

Hiram R. Wood, for respondent.

LEWIS, J.

This action was commenced in the municipal court of the city of Rochester. The complaint alleged that the defendant was indebted to the plaintiff upon a promissory note dated January 5, 1893, for $40, and interest thereon from that date. Other causes of action were alleged in the complaint. The answer admitted the making and delivery of the note; alleged certain counterclaims and partial payments. Upon the return of the summons in the municipal court, the defendant filed a written offer to allow judgment to be taken against him for the sum of $39, with interest thereon from January 5, 1893, and costs. The case was tried on the 16th day of January, 1895, and a judgment was rendered for the plaintiff for $44.66 damages; being for the amount of the noté mentioned, with interest from its date, and $11.60 costs. The defendant appealed to the county court of Monroe county, where said judgment was reversed by default, and the defendant recovered judgment against the plaintiff for $50.34, costs of such appeal. The plaintiff moved in the county court, upon affidavit, to open such de*1028fault. The facts stated in the moving papers tended very strongly to excuse plaintiff’s default in not appearing in the county court when the case was reached. The court did not consider the question of excuse, but denied the motion upon the ground, as stated in the order, that the defendant would, in any event, be entitled to a judgment of reversal. It appears from the record presented to us that the offer of judgment in the municipal court was not considered by that court in rendering its judgment, for the reason that the offer had been inadvertently removed from the files of the court; and the judge, when rendering his judgment, was not aware that the offer had been made, and therefore omitted to consider the question of the defendant’s right to costs after the service of the offer. It is the contention of the respondent that the judgment in the municipal court was not more favorable to the plaintiff .thanthe offer of the defendant, and that, therefore, the defendant was entitled to costs after the offer, and for the error in not allowing him costs the judgment must necessarily be reversed on the merits; -and that seems to have been the view taken by the county court. lío other reason for denying the motion appears in the papers. A simple computation of interest upon the amount for which judgment was offered shows that the offer was less, by nearly one dollar, than the amount of plaintiff’s recovery in the municipal court. The judgment in the municipal court seems to have been, in all respects, entirely correct. If, however, there was error in the allowance of costs to the plaintiff in the municipal court after the service of the offer of judgment, the judgment should not have béen entirely reversed for that reason; for the county court had power to correct the error by so modifying the judgment as to allow the defendant costs after the offer of judgment was made, and deducting the amount from the judgment. Shaw v. Davis, 55 Barb. 390, and cases cited. The motion having been denied upon a ground which had no real foundation, and no other error appearing to uphold the order appealed from, it should be reversed.

Having come to this conclusion, it is not necessary to consider the question as to whether the return’s not having been filed in the county clerk’s office until the day appointed for the term of the county court to begin gave the county court jurisdiction of the case to render a judgment by default.

The order appealed from should be reversed, with $10 costs and disbursements of the appeal. All concur.