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credit the amount paid into court on his execution (Dakin v. Dunning, 7 Hill, 30). Money cannot be paid into court without an order (Baker v. Hunt, i Wend. 103).
a. Bond conditioned for payment of money by installments is not within 2 R. 8. 353, § 12, permitting defendant to discontinue on bringing the amount due into court, with costs (see The People v. N. Y. Superior Court, 19 Wend. 104).
b. In what cases.--The offer may be made in any and every action (Bridenbecker v. Mason, 13 How. 203; Keese v. Wyman, 8 id. 88; Hill v. Northrup, 9 id. 525; Marble v. Lewis, 53 Barb. 432). If made to avoid the provisions of 382, the court may set it aside (R288 v. Bridge, 15 Abb. 150).
c. Joint debtors.-One defendant, a joint debtor, served with process, may, by an offer under $ 385, bind his codefendant (Emery v. Emery, 9 How. 130); and in an action against two, to recover a joint demand, an offer by one of the defendants, the other defendant not making any defense, will subject the plaintiff to costs if he proceed and fail to recover more than the amount mentioned in the offer (La Forge v. Chilson, 1 Code Rep. N. S. 159). Where A, B, and C were sued jointly, as joint debtors, and A was the only defendant served, and he made an offer under $ 385, for plaintiff to take judgment for $410 and costs, the plaintiff accepted the offer, and entered judgment against " all” the defendants as joint debtors. It was held that the plaintiff was regular (Lipman v. Joelson, 1 Code Rep. N. 8. 160, n; Emery v. Emery, 9 How. 130); and that he might enforce his judgment against the joint property of all the defendants, and the separate property of the defendant who made the offer (Emery v. Emery, 9 How. 130). Where two defendants were regularly served with summons, and one defendant, without the authority of the other, authorized an attorney to appear for both, and he appeared and served an offer which the plaintiff accepted, and took judgment, the court, on motion of the defendant who had not authorized the employment of the attorney, let such defendant in to defend, the judgment standing as security (Blodgett v. Conklin, 9 How. 442; see Yates v. Horanson 7 Rob. 12).
d. Partners.—One partner has no general authority to make an offer of judgment against the firm, in an action against the firm ; and if one partner makes such an offer, and it is accepted and judgment entered, the judgment will be irregular as in all the defendants but the one making the offer (Everso v. Gehrman, 1 A 5b. 167; 10 How. 301; Binney v. Le Gal, 1 Abb. 283). But where an attorney appears for both partners, and there is no contrivance in employing him to appear, his appearance on the record may make the judgment regular (19 Barb. 594; Bridenbecker v. Mason, 16 How. 203). One partner of a firm in failing circumstances, for the purpose of securing a bona fide partnership creditor, admitted service of a summons and complaint, and served an offer on which judgment was entered, and execution entered against, and levy made on, the partnership property ; and on motion to set aside the judgment and execution, by the other member of the firm, who was not cognizant of, nor consenting to the proceedings, it was held that the judgment and proceedings were regular (Olwell v. McLaughlin, 10 N. Y. Leg. Obs. 316).
e. Form.-The offer need not be signed by the defendant in person, the signature of his attorney is sufficient (Sterne v. Bently, 3 How. 331). If the defendant has appeared by an attorney, the offer should be made and subscribed by such attorney (Webb v. Dill, 18 Abb. 264). If, in such a case, an offer is made by the defendant in person, judgment should not be entered upon it without leave of the court (id.) The offer should be so distinctly made as to leave no doubt as to its meaning or its extent (Post v. N. Y. Cent. R. R. Co. 12 How. 552). An offer served with a copy of the answer (which answer claimed a set-off in respect of two promissory notes), stating that the defendant offered to allow the plaintiff to take judgment for the amount claimed in the summons, less the amount of the two notes set up in the third and fourth defenses in the answer, with costs, was held sufficient. The balance, between the amount claimed and the amount of the notes, was ascertainable by computation (Burnett v. Westfall, 15 How. 420). It must expressly state that judgment for the sum offered may be taken with costs, or it will be of no avail whatever (Ranney v. Russell, 3 Duer, 689). It must be unconditional and leave nothing to be ascertained or determined before the entry of the judgment (Pinkney v. Childs, 7 Bosw. 660; 15 Abb. 137, note). Thus an offer for a certain sum “ without costs, this offer being subject to the covenant for a stay of proceedings entered into between the parties," was held not to be within the statute (id.; and see Hanna v. Dexter, 15 Abb. 137), and see offer in a foreclosure action (Bettis v. Goodwill, 32 How. 137; and see Marble v. Lewis, 53 Barb. 432).
a. The offer may be for the full amount demanded by the complaint (Rox v. Bridge, 15 Abb. 150; 24 How. 163). It should be in behalf of all the defendants, or at least in behalf of all as to whom the plaintiff is in a situation, on filing the offer, to perfect judgment (Griffiths v. De Forest, 16 Abb. 292; 25 How. 836; and see supra, Joint debtors-Partners).
b. When served.-The offer may be served immediately after the action is commenced and before any complaint is served (Kilts v. Seeber, 10 How. 270). It should be served more than ten days before the trial; if served within ten days of the trial, the plaintiff may proceed; and if the trial is actually had before the expiration of the ten days in which the plaintiff may elect to accept or reject it, the defendant can have no benefit from it (Pomeroy v. Hulin, 7 How. 161; Walker v. Johnson, 8 id, 240).
c. Amendment by plaintiff.-An amendment by plaintiff of his pleadings after an offer, in nowise affects such offer (Kilts v. Seeber, 10 How. 270).
d. More favorable judgment.—Where the amount offered, with interest to the date of the judgment, would exceed the amount recovered, the judgment is not “more favorable," and the defendant is entitled to costs (Tülman v. Keane, 1 Abb. N. S. 23). When the amount recovered, added to any amount of counter-claim extinguished by the judgment, exceeds the amount offered, the judgment is "more favorable,” the plaintiff is entitled to costs (Tompkins v. Ives, 36 N. Y. 75; 1 Trans. App. 266; 3 Abb. N. S. 267; Rug. gles v. Fogg, 7 How. 324; Fielding v. Mills, 2 Bosw. 489; but see Schneider v. Jacobi, 2 Duer, 694; Kilts v. Seeber, 10 How. 270; Budd v. Jackson, 26 How. 389; Turner v. Honsinger, 31 How. 66). The amount of the judgment is not the only test of its favorableness (Horoard v. Farley, 18 Abb. 367; 29 How. 4). Thus, in an action on a bond secured by mortgage to recover an installment, an offer of the whole amount secured by the bond, but not due, will not prevent a judgment for the installment due, with interest, from being a more favorable judgment (id.) The offer should be construed as an offer in the action, at the time it was served, in its then condition (Tompkins v. Ives, supra).
e. Costs.-In an action on contract, at issue and on the calendar for trial, the defendants made an offer of judgment for $49.50, which the plaintiff accepted,-held, the defendant was entitled to recover his costs of the defense (Johnson v. Sagar, 10 How. 552).
f. Where, in an action to recover land, the defendant served with his answer, which was a general denial, an offer allowing the plaintiff to take judgment for a part of the premises claimed. The offer was not accepted. The plaintiff did not obtain a more favorable judgment than that offered, and the question arose as to the amount of costs to each
rty. Hand, J., allowed the plaintiff $12 and disbursements for his costs up to the time of the offer, but disallowed all subsequent costs and disbursements, including the disbursements on entering judgment. He also allowed the defendant full costs, excepting costs before notice of trial, but no costs of entering up a separate judgment for his costs. He disallowed extra costs to the defendant (Keese v. Wyman, 8 How. 88; and to the like effect is Burnett v. Westfall, 15 id. 431).
g. Judgment.-The judgment may be entered without the direction of a judge (Hill v. Northrup, 9 How. 525 ; 7 Rob. 12).
$ 386. Defendant may offer to liquidate damages conditionally.
In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that if he fail
, in his defense, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, with or before the notice of trial, and on the trial have a verdict, the damages shall be assessed accordingly.
§ $ 387. Effect of acceptance or refusal of offer.
If the plaintiff do not accept the offer, he shall prove his damages, as if it had not been made, and shall not be permitted to give it in evidence. And if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses, incurred in consequence of any necessary preparation or defense in respect to the question of damages. Such expense shall be ascertained at the trial.
a. Nonacceptance.-By not accepting an offer, the plaintiff does not waive his right to be paid the sum admitted by the answer to be due (Dusenbury v. Woodward, 1 Abb. 443; and see Smith v. Olseen, 4 Sand. 711).
6. The mere acceptance of an offer is not obtaining judgment (Lippmann v. Petersburger, 9 Abb. 209; see supra, in note to § 385).
Admission or Inspection of Writings.
$ 388. (Am'd 1849.) Inspection and copy of books, papers, and documents, how obtained.
(1.) Either party may exhibit to the other, or to his attorney, at any time before the trial, any paper, material to the action, and request an admission in writing of its genuineness. If the adverse party, or his attorney, fail to give the admission, within four days after the request, and if the party exhibiting the paper be afterward put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense, to be ascertained at the trial, shall be paid by the party refusing the admission, unless it appear to the satisfaction of the court that there were good reasons for the refusal. (2.) The court before which an action is pending, or a judge or justice thereof, may in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any books, papers, and documents, in his possession or under his control, containing evidence relating to the merits of the action, or the defense therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing,
a. Inspection, in what cases.—This section is not a substitute for the provisions of the revised statutes (2 R. S. 199), but is auxiliary thereto (Gould v. McCarthy, 11 N. Y. 575 ; Morrison v. Sturgis, 26 How. 177). The two systems may well stand together (Follett v. Weed, 1 Code Rep. 65; Dole v. Felloros, 1 Code Rep. N. S. 146; Davis v. Dunham, 13 How. 427; Pindar F. Seaman, 33 Barb. 140). This section extends only to an inspection (which implies production) and a copy, and not to discovery (Brevoort v. Warner, 8 How. 321), and the right to an inspection to discover evidence is not to be confounded with the production of books, &c., as evidence on the trial (Lefferts v. Brampton, 24 How. 257). The code enlarges the remedy for obtaining discovery, &c., and if a party establishes, satisfactorily, that any document is in the possession or control of his adversary, containing evidence relating to the merits of the action or defense, its inspection may be ordered (Case v. Banta, 9 Bosw. 595). But the statute does not sanction an order requiring either party to disclose evidence which he intends to introduce against his adversary (Strong v. Strong, 1 Abb. N. S. 233).
b. The court has no power to order a draft, upon which the action is brought, to be delivered to defendants, for the purpose of being annexed to a commission to be inspected by the witnesses (Butler v. Lee, 19 How. 383),
c. The power of the court, in a proceeding under this section, is limited by the terms of the section. In the first instance, the court may order a party to give, within a specified time, an inspection and copy, or permission to take a copy of books, &c.; if compliance with the order is refused, the court may exclude the paper from evidence, or punish the party refusing compliance, or both, but it is erroneous to order a deposit of books, &c., and in default
, that the party be precluded from from all defense and adjudged guilty of contempt (Pindar v. Seaman, 30 Barb. 140; see Rules 14, 15, 16, 17). It was not intended by the supreme court rules to confine the discovery of documentary evidence to the cases mentioned in the rule, but all proceedings in stituted under section 388 must be governed by its provisions, uncontrolled and unaffected by the rule (Exchange Bank v. Monteith, 4 How. 280). For although the legislature has imposed upon the supreme court the duty of prescribing, by general rules, the cases in which a discovery may be compelled, and although this has been done, yet the court itself is not bound by these rules, but may compel a discovery in other cases than those prescribed (Davis v. Dunham, 11 N. Y. 575). But the court has no power, on motion, to compel a party to submit articles which are the subject of the action, and are neither books, documents, nor evidences, of themselves, to be inspected by third parties, to enable such parties to qualify themselves to testify as experts (Ansen v. Tuska, 1 Rob. 663 ; 19 Abb. 391).
d. The court will not grant a discovery to ascertain the names of persons proper to be made parties to the action, but only to help the plaintiff in stating his cause of action (Opdyke v. Marble, 18 Abb. 266; 44 Barb. 64). The agents of a corporation cannot, in their individual capacities, be compelled to discover the books of the corporation (id.), as a party cannot procure the production of the books of a corporation by means of a subpæna duces tecum, the proper remedy of a party entitled to use such books as evidence is an application under this section or under the revised statutes (La Farge v. La Farge Ins. Co. 14 How. 26). As to the extent to which a corporation may be required to submit its books to inspection, see Johnson v. Consol. Silver Mining Co. 2 Abb. N. S. 413; Walker v. Granite B'k, 19 Abb, 111.
a. The granting or refusing the order rests very much in the discretion of the court (Keeler v. Dusenbury, 1 Duer, 660; Follett v. Weed, 1 Code Rep. 65; Van Zandt v. Cobb, 12 How. 544; White v. Monroe, 33 Barb. 650 ; see, however, Woods
V. De Figaniere, 25 How. 522), and is never a matter of course (Hooker v. Matthews, 3 How. 329); and the order will never be granted where it appears that the party making the application is chargeable with gross negligence or bad faith (ib.), or where he can obtain the production of the paper, &c., by a subpoena duces tecum, and an examination as a witness of the party having the custody of such paper either before or on the trial (Van Zandt v. Cobb, 12 How. 544; Com. Bank of Albany v. Dunham, 13 id. 541; Brecoort v. Warner, 8 id. 321 ; Stalker v. Gaunt, 12 N. Y. Leg. Obs. 124).
b. It is a matter of course to compel a party who has the possession of a document belonging equally to both, to produce the same for the inspection of his adversary, for the purpose of the action (Kelly v. Eckford, 5 Paige, 548; see 10 Abb 341, note). Partnership books and papers, in the hands of one partner or his representatives, will, in any stage of the action, be ordered to be deposited in court (Kelly v. Eckford, 5 Paige, 548); and where one party had possession of a letter, the property of his adversary, an inspection of it was ordered (Livermore v. St. John, 4 Rob. 12).
c. The power to order the production of books, &c., will never be stretched to cover those books, &c., which only furnish information to enable the party to procure evidence (Woods v. De Figaniere, 25 How. 522 ; Morrison v. Sturgis, 26 How. 177). And it is not sufficient that the books, &c., may, or probably will furnish information to obtain evidence which may be material. The book, &c., itself must contain the evidence (Morrison v. Sturgis, 26 How. 177; Woods v. De Figaniere, 25 How. 522 ; Pegram v. Carson, 10 Abb. 340). But in the New York common pleas it is held that an inspection of books and papers should be granted, if the books, &c., contain evidence which will prove or tend to prove a material fact (Lefferts v. Brampton, 24 How. 257).
d. Inspection to enable a party to prepare his pleading.An application for discovery of books, &c., to enable plaintiff to prepare his complaint, will be granted in an action against defendants as plaintiff's factors in selling his goods, the defendants not having rendered an account; but will not be granted to enable plaintiff to ascertain if an account rendered is correct (Ruberry v. Binns, 5 Bosw. 685). And an order may be made to enable a party to furnish a bill of particulars (Prince v. Currie, 2 How. 119). To warrant an order for inspection to enable plaintiff to prepare his complaint, “strong affidavits,” showing the necessity for the discovery, will be required (Keeler v. Dusenbury, 1 Duer, 661; see Opdyke v. Marble, 18 Abb. 266 ; 44 Barb. 64). é. Where the application was to enable the defendant to answer,
and no fact was stated showing how the discovery was necessary, but the petition merely stated that with the aid of the discovery the defendant expected to be able to prove that the note, the cause of action, had been paid, held, the petition was defective in not stating the facts the defendant expected to prove (Gelston v. Marshall, 6 How. 398; Stanton v. Del. Mut. Ins. Co. 2 Sand. 662). An order, requiring the plaintiff to produce or give copies of papers to enable the defendant to answer, will not be made when it is manifest that the defendant has no defense which he cannot set up in due legal form, to raise the proper issues, without the aid of such papers (Mora v. McCredy, 2 Bosw. 669). Discovery may be ordered to assist the defendant to facts without which he cannot frame an answer which will protect his rights