Legal Opinion

Rollins v. Barnes

Appellate Division of the Supreme Court of the State of New York

Decided December 15, 1897PublishedCited by 2 opinions

Cross-appeals by the plaintiff, Edward A. Rollins, and by the defendant, Everett Barnes, from an order of the Supreme Court, made at the Kings County Special Term bearing date the 26th day of November,-1897, and entered in the office of the clerk of the county of Richmond, directing a retaxation of costs “ by allowing to plaintiff his statutory costs up to the time of the receipt by him of the offer to allow judgment against defendant, together with one-half of the statutory…

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Cross-appeals by the plaintiff, Edward A. Rollins, and by the defendant, Everett Barnes, from an order of the Supreme Court, made at the Kings County Special Term bearing date the 26th day of November,-1897, and entered in the office of the clerk of the county of Richmond, directing a retaxation of costs “ by allowing to plaintiff his statutory costs up to the time of the receipt by him of the offer to allow judgment against defendant, together with one-half of the statutory allowance herein, besides his disbursements, less the amount of defendant’s disbursements on the appeal herein, and…

1Opinion of the Court

Hatch, J.:

When the appeal from the judgment was before us the record did not contain the offer of judgment, and its effect was not, therefore, considered. The action, although to foreclose a mortgage, is subject to the provisions of section 738 of the Code of Civil Procedure. If the defendant’s offer was broad enough to have entitled the plaintiff to the usual judgment' of foreclosure and sale for the amount of the offer, and judgment for any deficiency arising upon the sale, then, upon refusal to accept it, the defendant became entitled to costs, and the court was without any discretionary…

2Cases cited2 opinions

  1. Lumbard v. Syracuse, Binghamton & New York RailroadNew York Court of Appeals · 1875
  2. Bettis v. GoodwillNew York Supreme Court · 1866

3Cited by2 opinions

  1. Salerno v. Vogt, New York County Courts1912
  2. Rollins v. BarnesAppellate Division of the Supreme Court of the State of New York · 1898

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