#### Watson v. Benz.

*(Supreme Court, General Term, Second Department.*

July 18, 1890.)

Costs—On Appeal—Justice op the Peace.

Under Code Civil Proc. N. Y. § 3072, relating to appeals from justices of the peace, where new trials are demanded in the appellate court, which provides that “either party may, at any time after the action is deemed at issue in the appellate court, and before the trial, serve upon the adverse party a written offer to allow judgment to be taken against him for a sum or property, or to the effect therein specified, with or without costs, * * * and if the party to whom it is made fails to obtain a more favorable judgment he cannot recover costs from the time of the offer, but must pay costs from that time, ” where the offer is not accepted, and^the party obtains a more favorable judgment than the offer, he can recover costs from the time of the offer.. Distinguishing *Zoller*v. *Smith,*4S Hun, 819.

Appeal from Queens county court.

Action by William Watson against Albert Benz to recover damages for trespass to real estate. Plaintiff appeals from an order retaxing his costs. Code Civil Proc. K. T. § 3072, relates to appeals from justices’ judgments where new trials are demanded in the appellate court.

Argued before Barnard, P. J„ and Dykman and Pratt, JJ.

*C. A.*8. *Van Nostrand,*for appellant. *Harrison 8. Moore, for*respondent.

Dykman, J.

The plaintiff recovered a judgment in this action against the defendant in a court of a justice of the peace for $25 damages and $5 costs, and the defendant served a notice of appeal to the county court, in which he demanded a new trial in that court. Within 15 days after the service of the notice of appeal the defendant served a written offer to allow judgment to be taken against him for the sum of $5, but the offer was silent on the question of costs, and it was not accepted. The action was retried in the county court, and the plaintiff obtained a verdict for $12.50. Thereupon the county clerk adjusted the costs of the plaintiff at $64.92, and entered judgment in his favor for $77.42. Subsequently, and on the motion of the defendant, the county court made an order vacating the adjustment of the costs, and reducing the judgment to $12.50, and allowed $10 costs of the motion to be offset against *800the judgment, as corrected and reduced. From the last order the plaintiff appealed to this court, and we find it erroneous.

The question lies under the control of section 3072 of the Code of Civil Procedure, which is as follows, so far as it has application to this appeal: “Either party may, at any time after the action is deemed at issue in the appellate court, and before the trial, serve upon the adverse party a written offer to allow judgment to be taken against him for a sum or property, or to the effect therein specified, with or without costs, * * * If the party receiving the offer within ten days thereafter serves upon the adverse party notice that he accepts it, he may file it with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If the offer is not thus accepted, it cannot be proved-upon the trial, and if the party to whom it was made fails to obtain a more favorable judgment he cannot recover costs from the time of the offer, but must pay costs from that time.” As the converse of the last paragraph of this section must be true, it follows that if the offer be not accepted, and the party does not fail to obtain a more favorable judgment, he can recover costs, from the time of the offer, and the plaintiff in this case can recover costs because he did obtain a j udgment more favorable to him than the offer. The offer tendered him a judgment for $5, and upon its acceptance by him he might enter judgment for that sum only, without costs, whereas he obtained a judgment for $12.50, more than double the amount offered, so that both in respect to the verdict and the costs the judgment was more favorable to the plaintiff than the offer. The case of *Zoller*v. *Smith,*45 Hun, 319, is not an authority here, because the plaintiff failed to recover a judgment more favorable than his offer. The order appealed from should be reversed, with $10 costs and disbursements, and the motion should be denied, with $10 costs. All concur.