Cornell v. Donovan — 13 N.Y. St. Rep. 741

Majority

p. 741

Robert G. Cornell, App’lt, v. Daniel Donovan et al., Resp’ts.^[1]

(City Court of New York, General Term,

Filed January 30, 1888.)

Headnote

1. Party—Assignee of judgment the heal party in interest.

The assignee of a judgment, by an absolute assignment in writing, is the real party in. interest under Code Civ. Pro., § 4$), notwithstanding it may appear that his assignor expects to get his money if it is recovered in the action

p. 742

,S. Judgment as counter-claim by assignee.

Where an undertaking sued upon is joint and several, either surety thereon may plead, as a counter-claim, a judgment held by him against the party suing,' and, if the principal upon the undertaking is sued, such a judgment when pleaded may enure to the benefit of the co-sureties.

Appeal from a judgment rendered December 27, 1887, without a jury, on a trial before Hon. David McAdam, chief justice, in favor of defendants and against the plaintiff for the sum of $756.49 and costs, in all amounting to the sum of $1,188.07.

■ This action was brought to recover damages alleged to have been sustained by plaintiff, by reason of the arrest of plaintiff under an order of arrest, granted May 12, 1885,. and which order was subsequently vacated, the defendants having, on the 12th of May, 1885, executed an undertaking as principal and sureties, to pay to said plaintiff all costs and damages which might be awarded to said plaintiff, if it should be finally decided that said plaintiff was not entitled to the order of arrest.

The answer alleges that the order of arrest was finally vacated with costs to the said Cornell, which were taxed at $107.65, which were paid by said Donovan, and which said costs were part of the costs for which said undertaking was given.

That said Donovan, on the 5th day of May, 1886, recovered a judgment against Cornell for $867.31, and that there is still due thereon the sum of $729.66.

That on May 10, 1886, said Donovan assigned unto the defendant, Dennis Harrington, an undivided one-third of said judgment and the money due thereon, and that said Dennis Harrington is still the owner thereof.

That on the same day said Donovan assigned unto the defendant, John Harrington, an undivided one-third of said judgment and the money due thereon, and that said John Harrington is still the owner thereof, and that said defendants, Donovan, Dennis Harrington and John Harrington, are the owners of said judgment and of the moneys due thereon.

The above judgment is set up as á counter-claim to the claim of the plaintiff.

■ Upon the trial the chief justice found that the damages sustained by the plaintiff, Cornell, amounted to the sum of $250, and deducted therefrom the sum of $107.65 costs paid by said Donovan, and that there was a balance of $142.35, with $13.90 interest, making in all $155.25 due said Cornell.

That the assignments of the judgment were merely for the purpose of protecting said defendants Harrington from

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any liability arising from the afore-mentioned undertaking, but that they were to that extent to be absolute.

That the defendants were entitled to counter-claim the amount due on said judgment against the amount found to be due the plaintiff, and that defendants were entitled to judgment against the plaintiff upon said counter-claim, over and above the amount due the plaintiff, for the sum of $756.49, and ordered judgment accordingly, with costs, etc.

Horace Secor, for app’lt; Joseph C. Wolff, for resp’t.

The facts herein are undisputed, and the only question presented for our consideration is whether a joint judgment owned by the defendants can be the subject of a counter-claim against the amount found due the plaintiff, the general term of the court of common pleas having decided (December, 1887), that the counter-claim set up in the defendant’s answer was a proper subject of a counterclaim.

The assignments of the judgment by Donovan to the Harringtons were absolute on their face, and the assignee, by an absolute assignment in writing, is ‘ ‘ the real party in interest,” under section 449 of the code, notwithstanding it may appear that his assignor “expects to get his money if it is recovered in the action.” Allen v. Brown, 44 N. Y., 228 ; Meeker v. Claghorn, id., 349 ; Stone v. Frost, 61 id., 615; Sheridan v. The Mayor, 68 id., 31.

Had the assignments not been made, Donovan as principal debtor, the undertaking sued on in the action being several as well as joint, could have counter-claimed the judgment, as it would have enured to the benefit of the other defendants. Newell v. Salmons, 22 Barb., 647 ; Briggs v. Briggs, 20 id., 477.

I find no errors herein which require a reversal, and the judgment appealed from should be affirmed with costs.

PrrsHKE, J., concurs: