Vellerman v. King

New York Circuit Court

Vellerman v. King

2 Edm. Sel. Cas. 371

DecidedApril 15, 1853

StatusPublished

This text of 2 Edm. Sel. Cas. 371 (Vellerman v. King) is published on Counsel Stack Legal Research, covering New York Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vellerman v. King, 2 Edm. Sel. Cas. 371 (N.Y. Super. Ct. 1853).

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Opinion

Edmonds, J.:

The power of the court to order an amendment of the offer is plain enough, for under sec. 173 of the Code it extends to any pleading or proceeding, but the power of the party to amend, of course is, by sec. 172, confined to the pleading. The amendment in this case was by the party under the latter section, and not by the court. And the question therefore is, whether the offer can be regarded as a pleading, so as to be within the reach of the party’s power to amend. It is clearly a proceeding which the court might amend, but I apprehend it cannot be regarded as a pleading. No issue can be taken upon it, and sec. 143 of the Code says, that the only pleading on the part of a defendant is either a demurrer or an answer. The offer is neither of these. It is a distinct proceeding to be served with the answer.

It is so regarded in both instances where it is authorized by the Code. The amended offer in this case is, therefore, of no avail to the defendant, but he is to be held to his first offer served with the answer. That was for an amount confessedly less than was then due the plaintiff, so that whether the assessment of damages is to be governed by the amount due at the time of the offer, or at the time of the trial, in either case the assessment would exceed the amount offered, and therefore the defendant is not entitled to his costs.

I do not mean to hold, as claimed by the plaintiff, that the addition of the interest that would accrue between the time of the offer and that of the trial, would be such an excess of the amount assessed over that offered, as would deprive the defendant of his right to costs. It seems to me that to allow that would be virtually repealing the statute; but it is unnecessary to decide that point, and I allude to it merely to guard against its being regarded as now decided.

The plaintiff must have judgment for the amount offered, with interest from that time, and his costs of suit.

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Edmonds, J.:

The power of the court to order an amendment of the offer is plain enough, for under sec. 173 of the Code it extends to any pleading or proceeding, but the power of the party to amend, of course is, by sec. 172, confined to the pleading. The amendment in this case was by the party under the latter section, and not by the court. And the question therefore is, whether the offer can be regarded as a pleading, so as to be within the reach of the party’s power to amend. It is clearly a proceeding which the court might amend, but I apprehend it cannot be regarded as a pleading. No issue can be taken upon it, and sec. 143 of the Code says, that the only pleading on the part of a defendant is either a demurrer or an answer. The offer is neither of these. It is a distinct proceeding to be served with the answer.

It is so regarded in both instances where it is authorized by the Code. The amended offer in this case is, therefore, of no avail to the defendant, but he is to be held to his first offer served with the answer. That was for an amount confessedly less than was then due the plaintiff, so that whether the assessment of damages is to be governed by the amount due at the time of the offer, or at the time of the trial, in either case the assessment would exceed the amount offered, and therefore the defendant is not entitled to his costs.

I do not mean to hold, as claimed by the plaintiff, that the addition of the interest that would accrue between the time of the offer and that of the trial, would be such an excess of the amount assessed over that offered, as would deprive the defendant of his right to costs. It seems to me that to allow that would be virtually repealing the statute; but it is unnecessary to decide that point, and I allude to it merely to guard against its being regarded as now decided.

The plaintiff must have judgment for the amount offered, with interest from that time, and his costs of suit.

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Bluebook (online)

2 Edm. Sel. Cas. 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vellerman-v-king-nycirct-1853.