Hayes v. Carr — 8 N.Y. St. Rep. 824

Majority

p. 824

John Hayes, App’lt, v. George W. Carr, impleaded, etc., Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 9, 1887)

Headnote

Injunction — Restraining collection op judgment—Assignment op JUDGMENT.

Rabold, one of the defendants in this action, recovered a judgment against the plaintiff for the .costs in an action by the plaintiff against her, which she assigned to the defendant Oarr, her attorney in that action, for his services. At the time of that assignment the assignor was indebted to the plaintiff in a large amount for rent. Meld, that the assignee received the assignment subject to all the equities existing between the original parties, and that those equities should be adjusted by the judgment of the court before he is permitted to institute any proceedings for the collection of his judgment. , That an injunction was properly granted.

Appeal from an order made at special term vacating an order made ex parte enjoining the enforcement of a judgment for costs.

A. B. Moore and Samuel J. Crooks, for app’lt; George W. Carr, resp’t, in person.

Catharine E. Rabold, one of the defendants in this action, recovered a judgment against the plaintiff for the costs in an action by the plaintiff against her, which she assigned to the defendant Oarr, her lawyer in that, action, for his services. At the time of that assignment the assignor was indebted to the plaintiff in a large amount for rent.

Such being the situation and relation of the parties, the plaintiff commenced this action to obtain a judgment, against the defendant Rabold for the amount due from her to the plaintiff for rent after the deduction therefrom of the judgment against him, and a restraint of the enforcement of the judgment by the defendant Oarr, the assignee thereof.

A preliminary injunction restraining the enforcement of the judgment during the pendency of this action was procured at its commencement, which was vacated on notice, and from the order of vacation we have this appeal.

The complaint makes a case for the interposition of the court, and it would be quite inequitable to permit tlie enforcement of the judgment by the assignee, while the insolvent assignor remains indebted to the plaintiff in a large amount of money.

The assignee received the assignment subject to all the equities existing between the original parties, and those equities should be adjusted by the judgment of the court before he is permitted to institute any proceedings for the collection of his judgment.

p. 825

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

Barnard, P. J., and Pratt, J., concur.