Porter, J.
The import and effect of the of must be determined by the condition of the pleadings ate time it was made. It did not mean one thing then i another four days afterward. The answer was not desigf to vary the terms of the previous proposition^ but to ta issue on the plaintiff’s demand, and to introduce cross-cns on the part of the defendant, for the purpose of reducinr defeating a recovery,, if no. notice was given within bten days allowed by law. The intermediate pleading is,. in its nature, provisional; and a notice of acceptor whether served on the first or the tenth day, could applily to the original offer. It would operate upon the plaif’s claim, but not uponindependent causes of action exisl in favor of the. defendant. The litigation resulted inrecovery, more favorable to the plaintiff than the offer, r nominal amount was less than the sum proposed; but iiermining the right to costs, the plaintiff is entitled to benefit of the counterclaims which the defendant afterwfiected to interpose, and which are now extinguished by udgment. ■ (Code, § 385; Fieldings v. Mills, 2 Bosw., 48 Guggles v. Fogg, 7 How., 324; Budd v. Jackson, 26 id., 401; Schneider v. Jacobie, 1 Duer, 694.)
The judgment should be affirmed.
Bocees, J., also read an opinion for affirmance. All the judges concurred except Hunt, J., who was for reversal.
Judgment affirmed.