In re the Judicial Settlement of the Accounts of Kloster

Majority

p. 374

In the Matter of the Judicial Settlement of the Accounts of ADOLPHE A. KLOSTER and JULIUS LEHRENKRAUSS, as Executors, etc., of JOSEPH MASSON, Deceased.

Headnote

Set-off — a judgment, proceedings to enforce which wre stayed, by an appeal, is not the subject of set-off.

In an action brought by one F. J. Moissen against the executors of Joseph Mas-son for services rendered to the deceased, the executors set up a note given by Moissen to the deceased, and found among his assets, as a counter-claim, and recovered a judgment thereon, from which Moissen appealed, giving security to stay proceedings. Upon the settlement of the executor’s accounts they sought to set off this judgment against a legacy given to Moissen by the will.

Held, that their application so to do was properly denied.

Appeal from that portion of a decree of the surrogate of Kings county, entered in proceedings for the judicial settlement of the accounts of the executors of Joseph Masson, deceased, which disallowed an offset of a judgment against a legacy due to Erancis J. Moissen.

W. D. Veeder, for the executors, appellants.

Ayres <& Walker, for F. J. Masson, legatee, respondent.

The executors of Joseph Masson appeal from a portion of the decree of the surrogate of Kings county settling their accounts.

p. 375

The will gave F. J. Moissen, the respondent, a legacy of $300, Among tbe assets of tbe estate tbe executors found a note made by Moissen to tbe testator for $200.

In an action brought by Moissen against tbe executors for services to tbe deceased, they set up tbe note as a counter-claim and bad a judgment on it amounting, witb costs, to $346.42. Moissen has appealed from the judgment and given security. When the executors accounted they sought to set-off their judgment against the legacy, but the surrogate refused and from that portion of tbe decree tbe executors ’appealed.

Tbe cases cited in Hardt v. Schulting ( 24 Hun, 345 ) are conclusive against the executors’ right to set-off their judgment against Moissen’s legacy, and fully support tbe determination of tbe surrogate that a judgment so secured on appeal has not sufficient vitality to become the subject of a set-off. In Terry v. Roberts ( 15 How. Pr., 65 ), decided at Special Term in 1857, this principle was affirmed, and to obviate its disadvantage a stay was granted till tbe appeal should be determined. A note to the case states it was affirmed at General Term. In Pierce v. Tuttle ( 51 How. Pr., 193 ) tbe plaintiff bad judgment against defendant, and it bad been affirmed in tbe Court of Appeals. In another action between tbe same parties defendant recovered judgment from which an appeal was pending when execution was issued and a motion made to set-off •one judgment against tbe other. Tbe motion was granted at Special Term but tbe General Term reversed tbe order and held that tbe appeal suspended tbe right to set-off one judgment against tbe other. Ve see no distinction between that case and this,

Tbe order appealed from should be affirmed, witb ten dollars •costs and disbursements.

BarNard, P. J., concurred.

Parts of decree of surrogate’s decree appealed from affirmed., •with costs.