Perine v. Wiggins

10 N.Y.S. 939, 18 N.Y. Civ. Proc. R. 172, 1890 N.Y. Misc. LEXIS 1076

Opinion

Andrews, J.

The notice cannot be regarded as sufficient offer of judgment under section 738 of the Code, for the reason that no affidavit was annexed, as required by section 740. Riggs v. Waydell, 78 N. Y. 586. Besides, it was of no avail as such an offer, because not made more than 10 days before the trial. Herman v. Lyons, 10 Hun, 111. There does not appear to be any provision of the Code authorizing the withdrawal of an answer except in connection with an offer of judgment. Under section 740 I think the trial fee of $30 and the clerk’s trial fee of $1 should have been allowed by the clerk. Motion granted, without costs.