Walsh v. Empire Brick & Supply Co.

Under section 511 of the Code of Civil Procedure upon admission by defendant of the facts constituting the plaintiffs’ second «cause of action, in the absence of an offer of judgment and acceptance thereof, the plaintiffs were entitled to a severance of the action, with judgment. upon the cause of action admitted. Under that section the plaintiffs were not entitled to costs unless they elected •not to continue the action as to the remaining cause of action. (Waite v. Kaldenberg Co., 68 Hun, 528.) The offer of judgment, .however, for the exact amount claimed in plaintiffs’ second «cause of action was an offer of judgment with costs, and has been apparently construed by the Special Term as an offer of judgment upon the second cause of action, and, as such, judgment has «been ordered in accordance with the offer and acceptance. Assuming for the argument that an offer of judgment may be made appli-eable by .the defendant to one of several causes o£ action stated in *501the complaint, upon the acceptance of which the court would be: authorized to sever the action giving judgment for the amount: offered, and continuing the actions as to the remaining causes of action, this offer of judgment was not by the defendant made applicable to any specific cause of action. It was made generally in. the;action, and the acceptance of the offer must be deemed to be ar.> settlement of all damages claimed in the action directly within the? authority of Shepherd v. Moodhe (150 N. Y. 183). In that case-the head note reads: “ When, in an action of replevin for the possession of several chattels, the defendant, in his answer, claims, absolute title to some of the chattels and demands judgment therefor, and serves an offer of judgment in favor of the plaintiff for-all the chattels in suit except those claimed in the answer, and thes offer is accepted and judgment entered accordingly, the title- of the? defendant to the chattels claimed in his answer and excepted from? his offer is conclusively established, and the plaintiff is estopped from asserting title thereto in another action of replevin subsequently:-' brought against him by the original defendant to recover possession.-? of such excepted chattels, if retained by the original plaintiff under-his preliminary requisition in the original action.” It would seem? that in the case cited the offer of judgment was as distinct and separable as it could be in any action. If the acceptance of the. offer in that case was a settlement of the entire action and constituted a concession of title in the defendant to the property other than that for which the offer was made, I am unable to see why the: acceptance of the offer in the case at bar is not a complete satisfaction of plaintiffs’ entire claim. The order, therefore, as far as it; authorizes the continuance of the action as to the first cause off action was improperly granted because the cause of action therein? stated had been settled.

if or can this order stand as the granting of relief to the plaintiffs? for inadvertent or mistaken practice. It is apparent that the plaintiffs’ attorney construed the offer of judgment as an offer upon the? second cause of action only, and from the affidavit of plaintiffs"' attorney it appears that such an offer was the one intended to be? accepted. It is difficult to base relief to the plaintiffs, however,, Upon a bare mistake of law as to the effect of the offer of judgment. (See Shepherd v. Moodhe, 150 N. Y. 183; Stilwell v. *502Stilwell, 81 Hun, 392; Freudenheim, v. Raduziner, 10 Misc. Rep. 500.) These cases seem to construe an. offer of judgment. and its acceptance as an accord and satisfaction. ■ The pldihtiffs’ attorney,

. ¿however, has accepted the offer and has sworn to hi's authority só to «do. It is possible if it should appear that the plaintiffs’ attorney was not authorized to accept the offer as it has now been construed by this court, upon that fact being shown the court might grant the plaintiffs relief in the premises. Without deciding, however, that ¡such facts would authorize relief to the plaintiffs, it is enough to say ■ without.such fact appearing sufficient facts are' not) here shown to authorize the court to relieve the plaintiffs. j

The order must be modified so as to strike therefrom that provision authorizing the continuance of the action as to the first cause ■of action stated in the complaint, and as thus modified should be affirmed, with ten dollars costs and disbursements to! the appellant,

. • ■ • ¡ ■ . ■ All concurred. I

'Order modified so as to strike therefrom any provision authorizing fthe continuance of the action as to the first cause of action stated in "the complaint, and as so modified affirmed, with ten dollars • costs ¡and disbursements to appellant. ;