Majority
p. 106William E. Stillings, as Assignee of Richard Taylor, for the Benefit of Creditors, App'lt, v. Hugh Smith, Resp't. (New York Superior Court, General Term, Filed May 16, 1887.)
Headnote
Off-set—When one judgment can be off-set against another.Three actions were commenced by Taylor (who afterwards made a general assignment to the plaintiff) against this defendant, which resulted in three judgments in favor of defendant, which were entered against the plaintiff after said assignment. Later, a judgment was obtained, in a fourth action, by Taylor against this defendant. On an appeal from an order allowing defendant to offset the first three judgments, Held, that there was a proper case presented for an off-set, that the assignee was liable on the judgments entered in favor of the defendant and was the owner of the judgment entered in favor of his assignor.
Appeal by the plaintiff from an order of the special term, granting a motion that two judgments entered in the court
p. 107
of common p^eas in favor of the»defendant and respondent and against Eichard Taylor, the assignor of plaintiff— one for $279.57 and the other for $82.44, and that $150.40 of a judgment entered in this court in favor of said defendant and against said Eichard Taylor for $255.48, making in all, with interest, the sum of $526.39, be set off against a judgment for said last mentioned sum of $529.30, entered in this court in favor of said Eichard Taylor and against said defendant, Hugh Smith, in which action plaintiff has been substituted, and that said judgment last mentioned be canceled and discharged of record.
Three actions were commenced by Eichard Taylor, plaintiff’s assignor, against the defendant; one in the court of common pleas and two in this court. In the action in the common pleas, and in one of the actions in this court, the defendant recovered judgment. From the judgment recovered against him in the court of common pleas the said Taylor appealed, and judgment upon the dismissal of his appeal was duly entered against him, making in all the three judgments set forth in the foregoing statement in favor of the defendant and against said Taylor, the aggregate of which judgments exceeds the amount of the judgment rendered against said defendant by the sum of $105.08. And these judgments were entered subsequent to the assignment, and all the actions were prosecuted to judgment in the name of Eichard Taylor, the assignor. In the one recovered by said assignor, and against the defendant, in which the damages awarded were less than the one-tenth part of his claim, the plaintiff, as his assignee, was substituted in his stead, and now claims to cut off the defendant from his right to set-off so much of the judgments in his favor as will satisfy and discharge the judgment against him. The said Eichard Taylor, plaintiff’s assignor, was alleged to be financially irresponsible.
A. C. Shenstone, for app’lt; Norwood & Coggeshall. for resp’t.
Upon the facts as they were made to appear on the motion the order is right and proper. If the appellant could have shown an additional fact which within the authorities cited by him would have been a bar to the motion, he_ should have done so. The order should be affirmed, with ten dollars costs and disbursements, upon the opinion of the learned judge at special term.
The following is the opinion of Ingraham, J., at special term:
The plaintiff in the case of Taylor v. Smith, No. 2, having made a general assignment for the benefit of creditors, that judgment became vested in and owned by the assignee.
p. 108
The causes of action in the actions in which judgment was entered in favor of the defendant against the plaintiff having been by the general assignment transferred to the assignee after the commencement of such actions, the assignee under section 3247 of the Code would be liable for the costs in the like case and to the same effect as if he-was the plaintiff, and the court has power, by order, to direct the person so hable to pay them. The assignee, therefore, being liable for the judgment entered in favor of the defendant against the plaintiff, and being the owner of the judgment entered in favor of the plaintiff against the defendant, a proper case is presented for a set off. It does not appear that there is not sufficient' funds in the hands of the assignee to satisfy any lien that the attorney for the plaintiff has upon the action, No. 2. Motion should therefore be granted, without costs.