Penfield v. James , 12 Abb. Pr. 247 ( 1871 )

Brady, J.

The plaintiff did not demand a personal judgment against any of the defendants other than iSarah James and her husband, Edward D. James. They were the debtors. The other defendants were necessary parties, having, it was supposed, some interest in or lien upon the premises mortgaged. The defendants, James, offered to allow judgment to be taken against them for a sum named and interest thereon, with costs. Under that offer, the plaintiff would have been entitled to judgment for the amount of the offer, which would include' the interest, and tire taxable costs—that is, the costs allowed for the proceedings against them and the other defendants who were made parties to the action, and an allowance. The offer did not restrict the plaintiff to costs for proceedings against them. It is for judgment with costs —and that, as already suggested, must be construed to mean all the costs to which the plaintiff would be entitled on obtaining and entering the judgment for which he prayed, and to recover which the action was commenced. Hone of the other defendants appear to have answered. The plaintiff recovered a more favorable judgment than the offer gave him ; but on appeal, the general term reduced the recovery to the amount of the offer, and the judgment was not then more favorable. The costs adjusted against the defendants, James, and against them only, were as if no offer had been made, and the general term, by order, gave the liberty to either party to apply for a re-adjustment of them. The modification of the judgment as stated, and the order for the re-adjustment of costs, left the amount which the plaintiff was entitled to collect on the judgment as entered, at least so far as he was concerned, in doubt, and rendered it necessary that application should be made to determine whether, under the circumstances, the costs as originally adjusted, should remain. Until that was done, I think the plaintiff could not proceed to sell the mortgaged premises, and the defendants, James, could not, if they had so intended, appeal, because there was no judgment in conformity to the decision of the general term. The plaintiff did not obtain a more favorable judgment, and the defendants were entitled (Code, § 385) to the costs allowed by statute, which accrued subsequent to the offer, by reason of their answer and defense; and their taxation would reduce the amount of the plaintiff’s recovery.

For these reasons, I think the sale should be postponed, in order to have the costs adjusted. The right of the plaintiff to an allowance, I regard as settled by the order of the general term.