#### KAUTZ v. VANDENBURGH.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

1. Offer of Judgment—Time of Service.

Whether an offer of judgment and answer, served on the same day, will be deemed served together or at different times, is governed by the intention of the parties serving.

2. Costs—Refusal of Offer of Judgment.

Where an offer of judgment, served before an answer setting up a counterclaim, was refused, and plaintiff recovered less than the amount of offer, but the recovery, together with the counterclaim, exceeded amount of the offer, the judgment recovered was more favorable to plaintiff than the offer, as it extinguished the counterclaim, which acceptance of the offer would not have done.

Appeal from Albany county court.

Action by George Kautz against Harry Vandenburgh to recover for work and materials. There was a verdict in favor of plaintiff for $105, and plaintiff’s costs were taxed by the clerk, and judgment entered in his favor, with costs. From an order vacating and setting aside the taxation of costs in favor of plaintiff, and directing taxation of costs in favor of defendant against plaintiff, plaintiff appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Stedman, Thompson & Andrews (George W. Stedman, of counsel), for appellant.

Jas. C. Matthews (Mark Cohn, of counsel), for respondent.

PUTNAM, J.

The action was brought to recover for work and materials. The complaint, served May 2, 1893, set up one cause of action, and demanded judgment for $179.61. On the 1st day of June, defendant, pursuant to section 738 of the Code of Civil Procedure, served an offer to allow a judgment for $105 and costs, and on the same day served an answer denying plaintiff’s cause of action, and setting up two counterclaims. The offer was not accepted. Afterwards, plaintiff served an amended complaint setting up an additional cause of action, and demanded judgment for $246.51. The defendant served an answer to the amended complaint denying plaintiff’s cause of action, and set up the same counterclaims, and demanded judgment for the dismissal of the complaint. The offer to allow judgment was not renewed after service of the amended complaint and the answer thereto. Plaintiff, on the trial, recovered a sum (excluding interest) less than the amount the defendant offered. He claimed costs, however, on the ground that by the judgment the counterclaims set up in defendant’s answer were extinguished, and, the amount of such counterclaims and the sum recovered being larger than the offer of defendant, the judgment was more favorable than the offer. The county clerk took that view of the case, and taxed costs in favor of the plaintiff. This taxation was, however, overruled by the Albany county court. Said court *1047directed the clerk to set aside the taxation of plaintiff’s costs, and to allow defendant the costs of the action. The plaintiff appeals.

This being an appeal from the order of the county court, we can only consider the papers used before him on the motion for retaxation. An affidavit of James 0. Matthews was attempted to be read by defendant, but was excluded by the court on the ground that a copy thereof had not been served. The county judge, in his discretion, could have allowed the affidavit to be used, or could have postponed the hearing, so that a copy of such affidavit could have been properly served. But such a course was not taken, and. the affidavit having been excluded by the Albany county judge, we cannot consider it on the appeal. Nor can we properly give any force to the remarks of the county judge in his certificate as to the said affidavit of Matthews:

“That it was unnecessary to consider said affidavit, as the statements made by counsel for defendant and plaintiff showed that, as a fact, the service of .the offer of judgment and answer was one transaction, made at the same time and on the same day, the offer of judgment being handed to the attorney for the plaintiff first, and the answer next, and immediately after the offer of judgment.”

If such remarks of the county judge had been embraced in the order appealed from, it might have been deemed that he acted on the oral admissions of the parties before him, and such remarks might have been regarded by us; but, contained in the certificate, said statements of the court below must be deemed like an opinion of the county judge, and cannot properly influence our judgment formed on papers before us. From the papers before us it then appears, by the affidavit of George W. Stedman, that the offer of judgment in the case was served before the service of the answer, although it is admitted that such service of both papers was made on the same day. Said affidavit is not contradicted. The admission of service made by plaintiff’s attorneys on the back of the offer of judgment and answer show a service of the two papers on the same day, but do not contradict the statement that the offer was-served before the answer. We have no doubt but what an offer of judgment can be deemed served before an answer, although both papers are served on the same day. This was held in Ruggles v. Fogg, 7 How. Pr. 324, by Harris, J. This case was cited in Schneider v. Jacobi, 1 Duer, 694, 695, and approved in Tompkins v. Ives (Ct. App.) 3 Abb. Pr. (N. S.) 267-269. An offer and answer served the same day might be deemed served together or at different times, according to the intention of the parties serving. Here, in the papers we are at liberty to examine, it appears by the undisputed affidavit of an intelligent and reputable attorney that the offer was first served. It is to be regretted that the attorney of respondent did not take proper means to read an affidavit before the county court stating his view of the facts of the case. The papers, then, showing that the offer in question was first served, the contention of the appellant that the judgment obtained was more favorable than the offer should have been sustained. It is settled in such a case that the effect of an offer must be determined by the state of *1048the pleadings when it is served, and the acceptance thereof will not extinguish a counterclaim in an answer subsequently served, although such acceptance were made after service of such answer. Tompkins v. Ives, 3 Abb. Pr. (N. S.) 267, 268; Fieldings v. Mills, 2 Bosw. 489. The papers presented to us, therefore, show that defendant’s answer was served subsequent to the offer of judgment; and hence, it appearing that the plaintiff has obtained a judgment extinguishing defendant’s counterclaim, which would not otherwise have been extinguished, we think the judgment obtained was more favorable than the offer, and hence that the plaintiff was entitled to the costs of the action. The order of the county court should be reversed, with costs, and the motion denied. All concur.