Smith v. Olssen

6 Sandf. 711

• Court: The Superior Court of New York City
• Decided: March 6, 1852
• Status: Published

Opinion

Duer, J.,

(on advisement with all the Justices of the court,) said, that the court would not make any order for payment by the defendant, under the last clause of subdivision five of section 24Á of the code, upon his admission in the answer, where it was made to appear that the defendant had, previous to answering, made to the plaintiffs an offer in writing, allowing him to take judgment for the sum admitted to be due by the answer, as prescribed in section 385. The court does not feel called upon to grant such an order to the plaintiff, under such circumstances, so long as it is not clearly settled to what extent the court may be compelled to go in enforcing the order “ as it enforces a provisional remedy.” (Code, § 244, last paragraph.) If lie insist upon claiming more than the sum for which the defendant has offered him a judgment, let him pursue the ordinary and ascertained remedy.

Motion denied.