day of

19 "

entered herein on the providing that unless plaintiff within twenty days from service of such order, serve a copy of said complaint, the same be dismissed; and due proof being produced by the affidavit of M. N. that said order was duly served on the plaintiff's attorney on the

day of 19 , and that no copy of the complaint has been served, although more than twenty days have elapsed], now, on motion of Z. T., for the defendant:

[Or thus: This action having been at issue and pending in this court, and the plaintiff having unreasonably neglected to proceed in the action, and having failed to bring the same to trial according to the course and practice of this court, and younger issues having been tried in their regular order, and the defendant having moved at a Special Term of this court for a dismissal of the complaint, with costs, and the said motion having been granted, and the costs having been duly taxed at $ on motion of Z. T., attorney for the defendant:]

; now,

IT IS ADJUDGED that the complaint of the plaintiff be and hereby is dismissed with costs, and that the plaintiff recover of the plaintiff the sum of

that he have execution therefor.]

[Date.]

dollars, his costs as taxed [and

[Signature of clerk.]

ARTICLE VI.

ELECTION BETWEEN ACTIONS.

FORM No. 1298.

Order that plaintiff elect between several actions85

[Title (court order) and recitals according to the case; see Form 820, p. 1174.]

ORDERED, 1. That the plaintiff within

days after service

of a copy of this order on his attorney, make his election in which action he will proceed, and notify the same in writing to defendant's attorney; and if he shall elect to proceed in this action [or, in the action first above entitled] he shall stipulate to proceed no further in the action brought by him in the court [or, second above entitled] till the further order of this

court.

2. If he shall fail seasonably to elect and stipulate as aforesaid to proceed in this action only, then this action [or, with the action first above entitled, then said action] is from thenceforth to stand absolutely dismissed out of this court with costs. Enter: [signature of judge by initials of name and title.]

ARTICLE VII.

ISSUES FOR TRIAL BY JURY.

[The power to award an issue for the trial of an interlocutory or incidental question, or any question of fact not in issue upon the pleadings, will be better understood in connection with the power to refer such questions; see REFERENCES and TRIAL.]

85 This motion will be upon affidavit, to which the pleadings should be annexed except such as may be already on file in the action in which

the motion was made. If both actions are in the same court and place, entitle in both. If otherwise, move in one; see Vol. I, p. 84.

1. Object-speedy judgment.]—Confessions of judgment and consents to immediate judgment have been already treated. Considered as the means of obtaining judgment, the power of the court to act upon consent rests upon common law principles, although regulated in some of its details by statute.86

87

2. to avoid costs.] - For the purpose of enabling defendants to avoid unnecessary litigation and costs, there is a statutory remedy allowing an authenticated offer to submit to judgment for such relief (or, in replevin such of the chattels) as defendant admits the plaintiff is entitled to, so that plaintiff, if he refuses to accept the offer, shall proceed at his own peril as to costs; but if the offer is accepted, judgment entered thereon extinguishes the entire claim.88 A second offer may be served before trial.

3. Effect of offer.] — The effect of the offer must be determined by the state of the pleadings when it is served.90 It applies to equitable actions,91 if costs are awarded.92

If not accepted, the offer is not available to plaintiff, and serves defendant as a protection against subsequent costs only when plain

86 Volume 1, pp. 597, 651.

87 Newell Univ. Mill Co. v. Muxlon, 115 N. Y. 170; Shepherd v. Moodhe, 150 N. Y. 183.

88 Davies v. Mayor, 93 N. Y. 250. Even though separate claims are included in the complaint in separate counts. Walsh v. Empire Brick, etc., Co.,

90 App. Div. 498, 85 N. Y. Supp. 528.

Hibbard v. Randolph, 72 Hun, 626, 25 N. Y. Supp. 854.

90 Tompkins v. Ives, 36 N. Y. 76.

91 Singleton v. Home Ins. Co., 121 N. Y. 644; Kiernan v. Agric. Ins. Co.,

3 App. Div. 26, 37 N. Y. Supp. 1070.

92 Connolly v. Hyams, 42 App. Div. 63, 58 N. Y. Supp. 932.

tiff does not secure a more favorable judgment.93 Judgment may be entered only in exact accordance with the terms of the offer."

The offer and acceptance constitute a contract, and if plaintiff neglects to enter judgment the defendant may apply to court to direct its entry."

The service of an amended complaint which makes a substantial change in relief sought, or amount demanded, supersedes a previous offer.96 The offer cannot be retracted,97 and cannot be affected by the subsequent service of an answer.98 Death of either party after offer accepted does not affect validity.99

FORM No. 1299.

Offer by defendant to allow judgment.1

[Title of court and action.2]

The defendant [if all of several do not join, name each of those joining], hereby offers to allow judgment to be taken against him [or, the defendants offer to allow judgment to be taken against

93 N. Y. Code Civ. Pro., §§ 738, 739. A judgment for a sum of money only is less favorable than a foreclosure judgment, although the offer was for a greater sum of money than was found due by the foreclosure judgment. McNally v. Rowan, 101 App. Div. 342, 92 N. Y. Supp. 250, aff'd, 181 N. Y. 556. When the offer was served before answer, a counterclaim extinguished by the judgment must be considered in determining whether the judgment was more favorable. Smith v. Sheldon, 94 App. Div. 498, 87 N. Y. Supp. 1099.

Where the amount demanded in the complaint is unliquidated, interest cannot be added to determine whether the offer was more favorable. See Thornall v. Crawford, 34 Misc. 714, 70 N. Y. Supp. 61, and cases cited.

The result must be compared without including costs. Pruyn v. Lynch, 44 Hun, 587.

94 Abel v. Bischoff, 99 App. Div. 248, 90 N. Y. Supp. 990.

95 Abel v. Bischoff, supra.

96 See Thornall v. Crawford, 34 Misc. 714, 70 N. Y. Supp. 61.

97 McVicar v. Keating, 19 App. Div. 581, 46 N. Y. Supp. 298.

98 See U. S. Mortg. & T. Co. v. Hodgson, 30 Misc. 84, 61 N. Y. Supp. 868, and cases cited.

99 See Code Civ. Pro., § 763.

1 Sustained in Carpenter v. Kent, 11 Ohio St. 584; Ossenkop v. Akeson, 15 Nebr. 622, 19 N. W. Rep. 709, and N. Y. Code Civ. Pro., § 738. Also in Harris v. Equitable Life Assur. Soc., 64 N. Y. 196; where it was held, under the circumstances, equivalent to an offer to restore within the rule as to rescinding for fraud.

2 The statute held not applicable to proceedings for compensation in eminent domain. Johnson v. Sutliff, 17 Nebr. 423, 23 N. W. Rep. 9.

It is applicable in all classes of ac

tions. Bridenbecker v. Mason, 16 How. Pr. 203.

So held in foreclosure, Bathgate v. Haskin, 63 N. Y. 261; Penfield v. James, 56 N. Y. 659; in foreclosure of mechanics' lien, Kennedy v. MeKone, 10 App. Div. 88, 41 N. Y. Supp. 782; Lumbard v. Syracuse, etc., R. R. Co., 62 N. Y. 290; in ejectment, Keese v. Wyman, 8 How. Pr. 88 (but as to ejectment for non-payment of rent, see Code Civ. Pro., §§ 1504-1507, and 15 Alb. L. J. 70). As to damages for detention, Code Civ. Pro., § 1531.

3 In an action against defendants

them] herein by the plaintiff for * [here specify the sum, property or specific relief intended, and, if interest is intended specify it, with the dates necessary for exact computation],5 withcosts."

[Signature of each defendant joining, with acknowl [Date.] edgment; or signature and office address of]," Attorney for defendant.

[Affidavit, when attorney signs; see Form 1304.]8

[Serve at least ten days before the cause is to be reached. The original is served and a copy retained.]10

FORM No. 1300.

Another Form; foreclosure of mortgage or mechanic's lien.11

[As in Form 1299 to *, continuing:] establishing the amount

of plaintiff's lien at the sum of

19 to date of entry of judgment, and for foreclosure and sale and for a deficiency judgment against this defendant, with costs.