§ 384. (Am'd 1849, 1851.) Judgment and execution.

The statement may be filed with a county clerk, or with a clerk of the superior court of the city of New York, who shall indorse upon it, and enter in the judgment-book, a judgment of the supreme or said superior court, for the amount confessed, with five dollars costs, together with disbursements. The statement and affidavit, with the judgment indorsed, shall thenceforth become the judgment-roll. Executions may be issued and enforced thereon, in the same manner as upon judgments in other cases in such courts. When the debt for which the judgment is recovered is not all due, or is payable in installments, and the installments are not all due, the execution may issue upon such judgment for the collection of such installments as have become due, and shall be in the usual form, but shall have indorsed thereon, by the attorney or person issuing the same, a direction to the sheriff to collect the amount due on such judgment, with interest and costs, which amount shall be stated, with interest thereon, and the costs of said judgment. Notwithstanding the issue and collection of such execution, the judgment shall remain as security for the installments thereafter to become due; and whenever any further installments become due, execution may, in like manner, be issued for the collection and enforcement of the same.

ɑ. Judgment.—The judgment may be entered in any county (Mosher v. Heydrick, 45 Barb. 459; 1 Abb. N. S. 258; 30 How. 161). Until the clerk enters and records the judgment, there is no judgment, nothing of the existence of which a notice can be given, so as to affect a subsequent mortgagee or grantee. There is not only no lien, because that is in all respects the creation of the statute, but there is no judgment at all (Blydenburgh v. Northrup, 13 How. 290; see 4 How. 16; 20 id. 267).

CHAPTER IV.

Offer of the defendant to compromise the whole or a part of the

action.

SECTION 385.

Offer of compromise.

386.

387.

Defendant may offer to liquidate damages conditionally.
Effect of acceptance or refusal of offer.

§ 385. (Am'd 1851, 1866.) Offer of compromise.

The defendant may, at any time before the trial or verdict,

serve upon the plaintiff an offer, in writing, to allow judgment to be taken against him for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer, and give notice thereof in writing within ten days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and, if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer; and in case the defendant shall set up a counter-claim in his answer, to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's recovery below fifty dollars, then the plaintiff may serve upon the defendant an offer, in writing, to allow judgment to be taken against him for the amount specified, or to allow said counter-claim to the amount specified with costs. If the defendant accept the offer, and give notice thereof in writing within ten days, he may enter judgment as above, for the amount specified, if the offer entitle him to judgment, or the amount specified in said offer shall be allowed him in the trial of the action. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the defendant fail to recover a more favorable judgment, or to establish his counter-claim for a greater amount than is specified in said offer, he cannot recover costs, but must pay the plaintiff's costs from the time of the offer.

a. Tender. It seems that the code has not repealed the provisions of the revised statutes relative to a tender after suit brought (2 R. S. 553, §§ 20, 21, 22). See note to § 322.

6. Payment into court.-Where a plaintiff in bad faith, and to make costs, prevented a tender before action, for which defendant was prepared, defendant was allowed to pay money into court and have a discontinuance without costs (The People v. N. Y. Superior Court, 19 Wend. 104).

c. Payment into court is a payment pro tanto (Murray v. Bethune, 1 Wend. 191); it admits plaintiff's cause of action to the amount of the payment (Spalding v. Vandercook, 2 Wend. 431; Johnson v. Columbian Ins. Co. 7 Johns. 315); and plaintiff is entitled to that amount in any event (Slack v. Brown, 13 Wend. 390). If the amount is sufficient to carry costs, defendant must pay costs to the time of payment (Aikins v. Colton, 3 Wend. 326); if the plaintiff does not prove a cause of action for more than the sum paid in, the verdict should be for the defendant (Dakin v. Dunning, 7 Hill, 30), and he is entitled to costs (Logan v. Gilleck, 1 E. D. Smith, 398). Even if plaintiff does not prove a cause of action for as much as the sum paid into court, he cannot be made to refund (Read v. Mut. Safety Ins. Co. 3 Sand. 54). Where the plaintiff proves a cause of action for more than the amount paid into court, he is entitled to a verdict and judgment for the whole amount, but must

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, í Wend. 103).

a. Bond conditioned for payment of money by installments is not within 2 R. S. 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 (Ross 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. S. 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 to all the defendants but the one making the offer (Ever son v. Gehrman, 1 Abb. 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 (Ross 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. 336; 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 (Tilman 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; Ruggles 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 (Howard 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 party. 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).

9. 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 condi tionally.

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. Olssen, 4 Sand. 711).

b. The mere acceptance of an offer is not obtaining judgment (Lippmann v. Petersburger, 9 Abb. 209; see supra, in note to § 385).

CHAPTER V.

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