#### Landon *v.*Van Etten *et al.*

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

June 6, 1890.)

Costs—Extra Allowance—Offer of Judgment.

Where defendant becomes entitled to costs under Code Civil Proo. If. Y. § 738, providing that if plaintiff does not accept an offer of judgment made by defendant before the trial, and “fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time, ” defendant is not limited to the costs expressly provided for in the statute, but may be granted mi extra allowance in a proper case. Overruling *Magnln*v. *Dinsmore,*47 How. Pr. 11.

Appeal from special term, New York county.

*803Action by George I. Landon as receiver of the Bowling Green Savings Bank against James Van Etten and Smitten "V". Tripp. Defendants offered to allow judgment for $1,500 with interest. The recovery was for $1,609.90, but at that date the amount of the offer with interest was for $2,407.25. Defendants appeal from an order denying them an extra allowance. Code Civil Proc. H. Y. § 738, provides that if plaintiff does not accept an offer of judgment made by defendant before trial, and “fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time.”

Argued before Van Brunt, P. J., and Beady and Daniels, JJ.

*Wheeler, Cortes & Godhin, (L. Godhin,*of counsel,) for appellants. *Van Etten*and *Alexander Cameron,*for respondent.

Beady, J.

The defendant’s offer of judgment was better than the plaintiff’s recovery. He is therefore the prevailing party, and entitled to costs. The learned judge at special term thought him entitled also to an additional allow'ance, but felt constrained to refuse to grant it from want of power, his judgment in that respect yielding to the decision made in *Magnin*v. *Dinsmore,*47 How. Pr. 11, to that effect. That case does not however discuss the question which presents itself *in limine,*namely, what is meant by an allowance. Justice Woodruff, in *Brady*v. *Dubrow,*2 E. D. Smith, 78, 84, arrived at the conclusion, upon examination of the question, that the allowance-was of additional costs, and that the phrase must be so interpreted. This result is satisfactory, the chapter relating to the subject being entitled in the Code, “Fixing the Amount of Costs,” and articles 1 and 2 under the title are-“Sums Allowed as Costs;” “Taxation of Costs.?’ Whatever is given by way of indemnity under the statute is within the designation “costs,” and being costs, the party entitled to them, as provided by the Code, is also entitled to those given in addition to the established sums. If the prevailing party, for example, is entitled to costs, an allowance meaning additional costs may be given him to such extent as may be determined on a proper application showing the right to them to exist. It is unnecessary, however, to pursue this subject, inasmuch as the question has already been considered and determined by this court in *Commissioners*v. *Spofford,*3 Hun, 57. The proposition asserted and maintained by that case is where either party is entitled to costs such costs are not restricted to those given expressly, but include the allowance, if a proper case be made for them. This decision was predicated on the sections of the old Code, which are, however, substantially the same as those of the present Code. The order appealed from should therefore be reversed, and the motion be remitted for consideration. Ordered accordingly, with $10 costs and disbursements of this appeal. In expressing these views we must not be understood as intimating an' opinion as to the propriety of granting any allowance. All concur.