Loomis v. Higbie

29 How. Pr. 288

• Court: New York Supreme Court
• Decided: June 15, 1865
• Status: Published

Opinion

Section 366 of the Code was amended by the legislature of 1865, so that it contains the following clauses respecting actions triable in the county court that were commenced in a justice’s court, viz: Either party may, at any time before trial, serve upon the opposite party an offer in writing to allow judgment to be taken against Mm for the sum or property, or to the effect in such offer specified, and with or without costs, as said offer shall specify. If the party receiving such offer accept the same, and give notice thereof in writing within ten days, he may file the return and offer, with an affidavit of service of notice of acceptance thereof, and the clerk shall thereupon enter judgment according to said offer.” * * * If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence. And if the party to whom such offer is made, fail to obtain a judgment more favorable to him than that specified in said offer, then he shall not recover costs, but must pay the other party’s costs from the date of the service of the offer” (Laws of 1865, pp. 1289 and 1290).

The above amendment was not made until after the decision of the county court in Loomis agt. Higbie, and it is not noticed in the opinion of the supreme court in that case, and was not published at the date of such decision. (Note to Loomis agt. Higbie, ante, p. 232.)