Hirschspring v. Boe. HIRSCHSPRING v. BOE. CITY COURT OF NEW YORK, SPECIAL TERM, NOVEMBER, 1887. $$ 738, 3253. Offer of judgment-Costs recoverable, when offer not accepted-Allowance. The right of a party to costs is to be deterrmined as of the time of trial. Where a defendant in an action makes an affer to allow judgment to be taken against him, which is not accepted, and thereafter the plaintiff recovers a judgment which is not more favorable than the offer, the plaintiff is entitled to costs up to the time of the offer, and the defendant to costs thereafter; and the court may grant the defendant an extra allowance. Where the defendant in an action becomes entitled to costs by reason of having made an offer of judgment which was not accepted, the court may grant him an extra allowance, and the exercise of its discretion by the court cannot be reviewed by the clerk on taxing costs. If an allowance is made, it is a proper item to go in the judgment, and cannot be omitted by the clerk. (Decided November 21, 1887.) Motion by defendant for a new taxation of costs. On December 3, 1886, the defendant duly offered to allow judgment to be taken by the plaintiff in this action against him for the sum of $43.75, and interest thereon from October 1, 1884. This was not accepted, and the case went to trial; and the plaintiff had a verdict in his favor $51.01. The offer of judgment at the time it was made, with interest added, amounted to $49.53, and at the time of its acceptance, with interest added, to $51.95, being 94 cents more than the amount recovered by the plaintiff. Hirschspring v. Boe. The court granted the defendant an extra allowance, which the clerk refused to tax, and thereupon this motion was made. George H. Foster, for defendant and motion. Ullo, Ruebsamen & Hubbe, for plaintiffs, opposed. Upon MCADAM, Ch. J.—The plaintiff has recovered $51.01, and would have been entitled to full costs but for the offer of judgment. The right of parties to costs is determined as of the time of trial. For example: If a plaintiff sues for $49, he is not entitled to costs, but if a defense is interposed, and the claim, with interest added to the time of trial, aggregates $50, and the plaintiff has a recovery for that amount, he is entitled to a full bill of costs. this principle, and in the light of section 738 of the Code, the plaintiff became entitled to $15 costs up to the time of the offer, and the defendant to the costs thereafter (Burnett v. Westfall, 15 How. Pr. 430; Magnin v. Dinsmore, 46 Id. 297; S. C., 15 Abb. Pr. N. S. 331). As to the allowance, the case of Magnin v. Dinsmore (46 How. Pr. 197) decides that where, after issue joined, the defendant serves an offer to allow judgment, and plaintiff fails to obtain a more favorable recovery, the defendant is not entitled to an allowance. If this decision denies the power of the court to grant an allowance where an offer has been made and rejected, it cannot be approved. There is nothing in section 3253 of the Code that imposes any such limitation of power, nor is there anything in Penfield v. James (56 N. Y. 650) that necessarily implies such a limitation. If the offer is not made until the issue is nearing trial, that circumstance may have its influence on the question whether an allowance ought be granted to the defendant, because his right to costs commences to run only from the offer is made (Code, Civ. Pro. § 738). In this case an allowance was granted; the court h~~ Dyett v. Seymour. the power to award it (Board of Pilot Commissioners v. Spofford, 3 Iun, 52, 59), and the clerk could not review the exercise of discretion by the court; so that the allowance is a proper item to go in the judgment. The clerk will be directed to retax in accordance herewith. DYETT, SURVIVOR, ETC., v. SEYMOUR ET AL. SUPREME COURT, FIRST DEPARTMENT, NEW YORK COUNTY, SPECIAL TERM, NOVEMBER, 1887. S$ 803 et seq., 870 et seq. Inspection of books etc. When ordered-Examination of party before trial An assignee of a claim occupies no better position on a motion for a discovery of books and papers, or for an examination of a party before trial in an action brought by him on the claim, than his assignor would if he were plaintiff. A party cannot have an examination of a defendant nor an inspection of his books to prove matters within his own knowledge or within the knowledge of his assignor. In an action brought against a stock-broker to recover moneys alleged to have been obtained from the plaintiff's assignor by falsely representing to him that the defendant had made purchases and sales of stock for his account which had resulted in a loss, when, in fact, no such purchases or sales were made, but the defendants merely charged the assignor with fictitious losses, the plaintiff cannot have an inspection of the books and papers of the defendant and an examination of the defendant before trial to show the orders given by the assignor, the notices of execution which he received, the representations made to him and his payments, as the assignor is presumed to know such facts, unless it appears by the assignor's affidavit that he has lost the notices of purchases and sales furnished him by the defendants or does not remember the names of the respective vendors and vendees stated therein; and this prerequisite cannot be dispensed with Dyett v. Seymour. because the assignor has fled the jurisdiction of the court to avoid criminal prosecution. In such a case it is error to suppose that the defendants owe any duties to the plaintiff, he not being their customer but merely the assignee of a cause of action charging them with fraud, and they should not be required to furnish evidence against themselves unless a perfecily clear cause under the rules and authority is made out. (Decided November 16, 1887.) Motion by plaintiff for an order requiring the defendants to permit the plaintiff to inspect and make copies of all books, papers and documents in their possession or under their control, containing records of transactions or dealings of the defendants with John C. Eno, between January 1, and May 15, 1884, in stock or in regard to stock, or the purchase and sale thereof or dealings therein; also, application for an examination of the defendants as parties before trial as to matters in issue in this action. This action was begun on June 29, 1886, by the present plaintiff and one Norton against the above named defendant. Said Norton departed this life on February 8, 1887, and the action was continued by the present plaintiff as his survivor. The action was brought by the original plaintiffs as assignees of John C. Eno, to recover upon two causes of action, the sum of $450,512.50. The affidavit upon which the examination before trial is sought states that the grounds upon which the plaintiffs seek to recover, are as follows: "That in 1884, the defendants were brokers in the city of New York; that at divers times between January 1, and May 15, 1884, John C. Eno directed the defendants to buy for him various amounts of stock of different kinds aggregating 43,900 shares; the defendants to pay for said stock and to hold the same as security for the purchase money advanced, until otherwise ordered by said Eno; that the defendants stated to said Eno that they had purchased said 43,900 shares (from time to time as various lots were purchased) and had fulfilled Dyett v. Seymour. said instructions, and said Eno believed and relied on said reports and statements; that, believing and relying on said reports and statements, said Eno from time to time directed the defendants to sell the stock so reported to him to have been bought by them, and that the defendants stated to said Eno that they had sold the same, and the whole 43,900 shares thereof; and that the aggregate realized on said sale was less by the sum of $160,160 than the amount which the defendants had stated was paid for the same; and the defendants also stated to said Eno that he was indebted to them in the sum of $7,752.50, as and for their commissions upon the purchases and sales; that said Eno, believing and relying upon said statements, and believing that the defendants had bought and sold said stocks as alleged by them, and had earned said commissions, at divers times prior to May 5, 1884, paid to the defendants said sum of $160,160, for losses, and the said sum of $7,752.50, for commissions, being an aggregate of $167,912.50; that said reports and statements of said. defendants were false and fraudulent, and known to the defendants to be so, and were made with intent to deceive and defraud said Eno, and that the defendants did not make said purchases or sales or earn said commissions; that, before this action was begun, said Eno duly assigned to Arthur Dyett and Abraham R. L. Norton, all his claims, demands and causes of action against the defendants arising out of the premises and said facts, of which assignment the defendants had notice. This is the first cause of action. The second cause of action is that between January 1, and May 15, 1884, said Eno directed the defendants as his brokers to buy and sell for him 7,500 shares of the Union Pacific stock, and to pay for the same and hold said stock as security for their advances; that on divers day between February 19, and May 7, 1884, defendants represented to said Eno that they had bought for him, as his brokers, divers and different amounts of said Union Pacific stock aggregating 7,500 shares at various prices VOL. XIII.-9. |