Title Guarantee & Trust Co. v. Brown — 141 A.D. 14

Majority

p. 14

Title Guarantee and Trust Company, Respondent, v. Max Brown and Others, Appellants.

Second Department,

November 18, 1910.

Headnote

Action to set off judgment — injunction restraining collection of judgment pendente lite. .

A plaintiff,- having uncollectible judgments against .an insolvent defendant and suing to offset the same against a judgment for costs awarded in another action brought by the defendant against him, should be granted an injunction pendente lite restraining the defendant .and other persons interested in the costs from collecting the same, as otherwise he will be deprived of all the benefit of his judgments while being compelled to pay costs to the defendant.

Appeal by the defendants, Max Brown and others, from án order of the Supreme Court made at the Kings County Special Term and.

p. 15

entered in the office of the clerk of the county of Kings on the 28tli day of May, 1910, granting the plaintiff’s motion for an injunction pendente lite.

Max Brown \_Solomon Sufrin with him on the brief], for the appellants.

Sidney 'A. ' GlarTcson [Albert A. Movell with him on the brief], for the respondent.

The complaint in this action alleges the recovery of a judgment in the Municipal Court against the defendant Max Brown for ninety-two dollars and fifty cents, with sixteen dollars and forty cents costs and disbursements, making a total of one hundred and eight dollars and ninety cents; that subsequently a second judgment was docketed against the defendant Max Brown and in favor of the plaintiff for the sum of fifty-eight dollars and sixty cents; that executions on the same have been returned wholly unsatisfied; that the defendant Max Brown is insolvent and unable to pay such judgments, and that the defendants Kebecca Brown and Isaac Dolinky claim some interest in a certain award of costs made by the Appellate Division of the Supreme Court in favor of the defendant Max Brown in a litigation between plaintiff and the said defendant Max Brown. The purpose of the action is to set off the amount of these costs, awarded by an order of the Appellate Division, against these judgments, and the order appealed from stays the defendants from collecting these costs during the pendency of the action.

The facts alleged show that defendant Max Brown is insolvent and unable to pay the judgments, and if the defendants are permitted to collect the costs which have been awarded against the plaintiff the latter will be deprived of all the benefit of its judgment while compelled to pay costs to the defendant Max Brown.

We think the learned court at Special Term had-the power to grant the stay in this action, and that the order appealed from should be affirmed. If the defendants succeed in tjie action, no substantial right will be interfered with ; if they do not, the plaintiff is entitled to some measure of protection.

p. 16

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Thomas .arid Bich, JJ., concurred; Burr, J., concurred.in result; Carr, J., not voting.

Order affirmed, with ten dollars costs and disbursements.