#### JOSEPH LESLIE, Respondent, *v.*EMMA WALRATH and CHARITY B. STRONG, Appellants.

*<9ffer of judgment*— Code *of Oivil Procedure,*§'378 — *ineffectual unless it complies with the statute in all substantial respects.*

in tills action, brought to recover the sum of $375, with interest thereon from September 4, 1884, besides costs, the defendants, after interposing an answer ¡setting up a counter-claim, served'an offer of judgment for the sum of $150, with costs to date.

*Meld,*that the offer was ineffectual to prevent the plaintiff from recovering costs, .although the verdict obtained by him was for only the sum of $113.50, as it did inot comply with section 738 of the Code of Oivil Procedure, requiring that the pffer 'be to allow judgment “ for a sum or property, or to the effect therein specified, with ¡costs, ” in that it subjected the plaintiff to the costs of entering judgment upon it, and of issuing the execution and entering the satisfaction.

AppeaL from an order of the Chautauqua County Court denying the defendants’ motion for a retaxation of costs

*Lockwood &*Shaw, for the appellants.

*Holt &*Hull, for the respondent.

Smith, P. J.:

Action on a promissory note. The plaintiff claimed to recover •the sum of $275 with interest from the: 4th of September, 1884, besides costs. The defendants set np a counterclaim, and before trial served an offer of judgment “for the*sum of One hundred and •fifty dollars, with costs to date.” The offer was dated. It was not .accepted, a trial was had, and the plaintiff obtained a verdict for the sum of $112.50.

'The plaintiff’s counsel contends that the offer was ineffectual by .reason of the limitation imposed by it in respect to costs, its effect being, if accepted, to subject the plaintiff to the costs of entering judgment upon the offer, and of execution and entering satisfaction. We think he is right m that contention. The statute authorizing the offer provides that it shall allow judgment, u for a sum, or property, or to the effect therein specified, with costs.” (Code of Civil Pro., § 738.) The party making the offer frames it to suit himself. If it does not comply with the statute, in all substantial *19respects, it is a nullity, and it may be treated as sucli by the party served with it. *(McFarren*v. *St.*John, 14 Hun, 387; *Riggs*v. *Waydell,*78 N. Y., 586.) If the party served with a valid offer accepts it, he is entitled to enter judgment upon it, and to tax the costs of the entry upon the party making the offer. But the offer in this case was so framed, as that the plaintiff, if he had accepted it, could have taxed no costs accruing subsequently to the date of the offer. He would have been limited by the terms of the offer.

The appellants’ counsel suggest that the words “ to date ” mean the date of the judgment to be entered on the offer. We do not think they are fairly susceptible of the construction. It makes them superfluous and meaningless. But the case is not one for judicial interpretation. The offer should be specific and certain in all material respects.

It is also suggested by the appellants’ counsel that the word “costs” used in the offer does not include disbursements. We think otherwise. The word “ costs ” is to be regarded as used in the same sense in the offer as in the section of the Code which authorizes an offer; and there it evidently includes disbursements.

The order should be affirmed, with ten dollars costs and disbursements.

Haight and Bradley, JJ., concurred.

Order affirmed with ten dollars costs and disbursements.