Opinion
November, 1898.
James E. Kelly, for appellants.
Thomas D. Rambaut (Edward H. Wilson, of counsel), for respondents.
On the 13th of May, 1898, the action being then at issue, and on the general calendar of this court, the defendants' attorney served upon the plaintiffs' attorney an offer to allow judgment to be taken in the action by the plaintiffs against the defendants for the sum of $110.
Thereafter on the 19th day of May, 1898, the case was reached upon the daily calendar of this court and answered ready and the trial was commenced on that day and continued on the 20th day of May, 1898, on which day a verdict was rendered by the jury in favor of the plaintiffs against the defendants for the sum of $29.
Immediately upon the rendition of the verdict the plaintiffs' counsel moved to set aside and for a new trial upon the grounds stated in section 999 of the Code of Civil Procedure, which motion was denied; he then moved for thirty days stay of execution and the same time to prepare a case on appeal, which was granted.
After the close of the trial the plaintiffs' attorney served upon the defendants' attorney a notice that the plaintiffs accepted the offer of judgment made on May 13, 1898, by the defendants' which notice and acceptance were immediately returned by defendants' attorney to plaintiffs' attorney with a notice indorsed thereon to the effect that having elected to go to trial in the action plaintiffs had waived all rights under the offer of judgment.
Later, on said 20th day of May, 1898, plaintiffs' attorney entered judgment in the action upon the offer of judgment, and alleged acceptance of it in favor of the plaintiffs against the defendants for the sum of $163.50.
On the 23d day of May, 1898, defendants' attorney procured from one of the justices of this court an order directing the plaintiffs to show cause why said judgment should not be vacated and set aside and served it upon the plaintiffs' attorney.
On the 25th day of May, 1898, the motion under said order came on and was heard and denied upon the ground that although the plaintiffs proceeded to trial they had a right after the trial to accept judgment provided the ten days' time of acceptance had not expired.
Upon this decision an order was entered on the 26th day of May, 1898, denying the defendants' motion to vacate the judgment, with $10 costs, and from that order the defendants have appealed.
The order appealed from must be reversed upon authority of Guttroff v. Wallach, 3 Misc. 136.
That case expressly held, and, we think, correctly so, that plaintiffs cannot accept an offer of judgment after electing to go to trial. Although the order entered upon this decision of the General Term was subsequently reversed, it was so reversed upon other grounds, and the rule thus stated was not questioned, and the order appealed from should be reversed, with costs, and the motion granted, with costs.
FITZSIMONS, Ch. J., and CONLAN, J., concur.
Order reversed, with costs, and motion granted, with costs.