¶1The notice cannot be regarded as sufficient offer of judgment under section 738 of the Code, for the reason that no affidavit was annexed, as required by section 740. Riggs v. Waydell, 78 N. Y. 586. Besides, it was of no avail as such an offer, because not made more than 10 days before the trial. Herman v. Lyons, 10 Hun, 111. There does not appear to be any provision of the Code authorizing the withdrawal of an answer except in connection with an offer of judgment. Under section 740 I think the trial fee of $30 and the clerk’s trial fee of $1 should have been allowed by the clerk. Motion granted, without costs.
10 N.Y.S. 939
Perine v. Wiggins
Decided March 24, 1890
New York Supreme Court · decided 1890-03-24
At chambers. Action by Mary E. Perine against Charles B. Hall as drawer, and Edwin B. Wiggins as indorser, of a draft. Defendant Wiggins alone answered, and issue was joined thereon. After the cause had been noticed for trial, the attorney for the answering defendant served a notice on plaintiff that he withdrew his answer.. Afterwards, on the day on which the cause was noticed for trial, defendants failed to appear, and an inquest was had against them.
Relies on Riggs v. . Waydell
Decided 1890-03-24