Majority
p. 65SUPREME COURT. Terry agt. Roberts. New-York Special Term, October, 1857.
Headnote
Where a party is substituted as plaintiff in an action, without notice to the opposite party, the party so substituted stands in the shoes of his assignee, and is subject in equity, at least, to the same set-off as the original party would have been. (This is in accordance with Howard, & Brown agt. Taylor, 11 How. 380 . See also Chappell agt. Potter, id,. 365.)Motion for a stay of proceedings on giving adequate security.
Roberts commenced an action against Carter. Five days thereafter Carter commenced an action against Roberts. Both
p. 66
causes referred to Isaac Dayton, Esq., as sole referee, and by agreement the report in each case was to be simultaneously.
The referee reported due Roberts from Carter, $800. Due Carter from Roberts, $149.
The same day that the reports were given, Carter assigned the report in his favor to Terry, and Terry was ex parte substituted as plaintiff upon the record.
Judgment was perfected in each case. Carter appealed to the general term and gave security. Terry issued an execution upon the judgment perfected in his name.
John Fitch, for motion.
Edmund Terry, in person, opposed.
The plaintiff Terry stands in the shoes of his assignee, and was subject in equity, at least, to the same set-off by Roberts. Although an actual set-off is not allowable of one judgment against another when the first is appealed from, yet the only effect of the appeal (unless ultimately successful) is to suspend and not to extinguish the set-off.
The proper remedy, therefore, is a stay of proceedings, until the issue of the appeal can be known, on giving the proper security.
Note.—Affirmed on appeal at general term, November, 1867. Mitchell, Clerke and Peabody, Justices.